Free Speech: Petition by The Caravan against removal of its article on custodial torture in J&K points to violations of principles of natural justice, fundamental rights

On March 13, the Delhi Press Patra Prakashan moved a writ petition in the Delhi High Court to seek quashing of take down orders issued by the Union government under Section 69A of the IT Act
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On March 13, the Delhi Press Patra Prakashan moved a writ petition in the Delhi High Court under Article 226 of the Indian Constitution. Through this, the publishing house that has been publishing The Caravan for decades, have sought the quashing of the take down orders issued by the Union government (I &  B). The censorship move was in connection with an article and video published by The Caravan on allegations of torture and murder against the Indian Army in Jammu and Kashmir’s Poonch district. 

The impugned order was issued by the Ministry of Information & Broadcasting on February 12, 2024. Through the order, the ministry had ordered the removal of the article titled ‘Screams from the Army Post’ from The Caravan’s website, along with certain URLs of social media posts posted from its social media handles disseminating the article. As per the petition, the reason provided by the ministry is that the articles have the potential to lead to communal disharmony and uprising against the security forces in Jammu and Kashmir, they are “detrimental to sovereignty and integrity of India, security of the State, and public order in the country.” Deeming the order to be in violation of the fundamental right to free speech and expression and the freedom of the press under Article 19(1)(a) of the Constitution of India and the right to equality under Article 14, the petitioner has approached the High Court to quash the same. 

What did the article publish:

On February 1, 2024, The Caravan magazine published an article titled ‘Screams from the Army Post’. The article, written by journalist Jatinder Kaur Tur, covers the incidents of allegations of abduction, torture and custodial killings of civilians at the hands of the officials of the 48 Rashtriya Rifles counter-insurgency force of the Indian Army on December 22, 2023 in Poonch and Rajouri districts of Jammu and Kashmir. The article centred around the killing of three civilians, allegedly by unidentified soldiers, on December 22, 2023 which was widely reported in the media. The deceased were Safeer Hussain (aged 48), Mohammad Showkat (aged 28) and Shabbir Ahmad (aged 25). A day after the killings, locals from the Poonch district had provided that the men were killed in army custody. 

Later, videos of them being tortured by uniformed armed personnel had gone viral. In the video, the victims could be seen pleading and begging the armed personnel as they continued to beat them and apply chilli powder on their private parts. With the news going viral and resulting in an uproar by the citizenry, the Army had initiated a high-level internal probe into videos within two days. Meanwhile, the government had also suspended internet in Kashmir amid intensifying protests. Additionally, the government had swiftly announced compensation and jobs to the kin of these civilian.

It is essential to note that the report by The Caravan also emphasised that while three men had been killed, a much larger number of approximately 25 had been reportedly picked up by the Army and “severely tortured”. The report also named a brigadier, who allegedly had given the orders for what happened. 

Based on extensive reporting, no reply to the questionnaires sent to the Army:

According to the petition, the extensive report was based on “interviews with the survivors of the torture, relatives of the deceased, other eyewitnesses of the incident, local residents of the area, political leaders, civil servants, officers of the Intelligence Bureau, and senior officers of the Indian Army and an examination of medical reports of the victims, publicly reported and available facts, and videos of the torture recorded and shared widely on social media.”

The petition also highlights the fact that, prior to the publication of the article, The Caravan had sent detailed questionnaires to the Army, Ministry of Defence, Director General of Police, Senior Superintendent of Police, and the District Deputy Commissioner, regarding the incident and allegations of torture, seeking their responses to the same. To the said questionnaire, no responses or denials were received, the petition pointedly provided. Thus, basic fair practices were followed by the publication giving full opportunity to the Army to respond.

A video story related to the article was also posted by The Caravan on YouTube. After its publication, social media posts promoting the article and video story were posted on social media websites such as ‘X’ (formerly Twitter) and Instagram.

Order of the Union government:

On February 9, The Caravan received a notice from the Ministry of Information & Broadcasting under the controversial IT Rules intimating the publication that, since,  a complaint had been received by the Ministry regarding the abovementioned article and social media posts as they were “detrimental to sovereignty & integrity of India, security of the State, and have the potential to lead to communal tensions leading to disturbance of public order in the U.T. of Jammu and Kashmir”.

Through the notice, a representative from The Caravan was asked to be present for an online meeting with Inter Departmental Committee that had taken place on February 12 at 12:00 pm. It had been highlighted by the petitioner that one of the URLs (links) complained of in the order was a post on put up on X that was not even connected with the custodial torture. Rather, the said post was connected to an earlier article published by The Caravan in its August 2023 issue on the ethnic cleansing in the state of Manipur since May 2023.

The petition, accessed by Sabrangindia narrates that, a response had also been sent by the Editorial Manager of The Caravan on February 11 to the notice of the ministry. Through the response, the Editorial Manager had denied the allegations levied against the article and social media posts by asserting the correctness of the article. In addition to this, the Editorial Manager sought access to the complaint made against the custodial torture article on the basis of which the proceedings had been initiated, as well as the procedure that would be followed by the Inter Departmental Committee, so that a proper informed response could be given against the said complaint.

The petition provided the details of the meeting that took place on February 12. As stated in the petition, the principles of natural justice were not followed as even before hearing the representative of The Caravan, the Committee members declared that the URLs (links) in question were required to be pulled down, without detailing any reasons. It was also provided that the representative was neither supplied a copy of the request/complaint. The details of the complainant, the allegations therein, or the details of the specific portion(s) of the Article was deemed to be detrimental to the sovereignty & integrity of India, security of the State, and had the potential to disturb public order were not provided to the representative as well. 

According to the petition, the main grievance raised by the Committee was that the article lacked an official response from the Indian Army on the incident. Upon this, the representative had informed the Committee that the Army had not offered a response to the author despite being requested for interviews and being supplied with a questionnaire and, thus being given a full opportunity to respond. The representative had also assured the Committee that the online version of the article would be updated if a response was received even after publication. Lastly, the representative had also pointed out that there was no any official denial or rebuttal of any of the contents of the article by any government agency. Notably, the said meeting had only lasted for 30-35 minutes.

On the same day, within a few hours post the meeting, The Caravan received the impugned order under Section 69A of the Information Technology Act, 2000 read with Rule 15(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code). Rules, 2021. 

Section 69A confers on the Central and State governments the power to issue directions “to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource”. The grounds on which these powers may be exercised are as follows:

  • In the interest of the sovereignty or integrity of India, defence of India, the security of the state.
  • Friendly relations with foreign states.
  • Public order, or for preventing incitement to the commission of any cognizable offence relating to these.
  • For investigating any offence.

As per Rule 15 (2), the Authorised Officer shall direct the publisher, any agency of the Government or any intermediary, on approval of the decision by the Secretary, Ministry of Information and Broadcasting, to delete or modify or block the relevant content and information generated, transmitted, received, stored or hosted in their computer resource for public access within the time limit specified in the direction.

Thus, through the impugned order, the petitioners were directed to remove the article and the provided social media posts within 24 hours, failing which the website of The Caravan would be blocked by the union government. The notice further stated that the article and posts have the potential to lead to communal disharmony and uprising against the security forces in Jammu and Kashmir, and were detrimental to sovereignty and integrity of India, security of the State, and public order in the country. 

Violations underlined by the petitioner:

The following violations have been highlighted by the petitioner in the writ petition:

  • As per the petitioner, the impugned order failed to show any incorrectness or error in the article and ordered for the removal based on its incorrect subjective reading.
  • The order completely ignores that the incidents reported in the article are based on extensively gathered facts, oral testimonies, medical evidence, and publicly available information.
  • No weightage was given to the fact that the army or any other government agency had not denied the information provided in the article. 
  • The order is devoid of reasoning showing the any negative impact of the article on communal harmony, sovereignty and integrity of India, security of the State or public order. 
  • In the appendix of the order, specific observations of the Committee qua individual urls had been provided, which were visibly copy-pasted from one to the other, reflecting complete non-application of mind by the Committee.
  • The procedure adopted by the Respondent (Ministry) violates the principles of natural justice as The Caravan was not provided a copy of the complaint, or the allegations made therein. 
  • No proper and effective opportunity to rebut the allegations provided was provided during the hearing which lasted 30-35 minutes. As the relevant materials relied upon were not provided, the hearing was rendered a meaningless empty formality.

Based on the aforementioned, the petitioner alleged the following:

Violation of fundamental rights: As per the petitioners, that the impugned order has gravely violated their fundamental rights of free speech and expression, by imposing an unreasonable, excessive, and arbitrary restriction of the freedom of the press. In addition to this, the procedure adopted by the Respondent has also violated the fundamental right to equality by violating the principles of natural justice.

Section 69A not established or attracted: The petitioner has argued that, the twin requirements of necessity and expediency under Section 69A have not been established and no pressing state interest requiring their removal has been demonstrated. The petitioner has also claimed that since they were directed to remove the requested article and posts or otherwise face the consequences, they had no option but to comply with the impugned order under objection. 

The arbitrarily removed social media posts also included the Twitter post related to the Manipur article, which had no connection to the article in question in this case.


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