THE INDIA FREEDOM REPORT, JANUARY 2016-APRIL 2017 (THE HOOT)

 
THE INDIA FREEDOM REPORT, JANUARY 2016-APRIL 2017
 
 
JOURNALISTS UNDER ATTACK
NEWS CENSORSHIP
FREE SPEECH AND THE COURTS
DILUTING THE RIGHT TO INFORMATION
INTERNET SHUTDOWNS
CENSORSHIP OF THE ARTS
 
 
Over the last 16 months, issues of press freedom, freedom of expression, online freedom and personal freedoms have come together to produce an overall sense of shrinking liberty not experienced in recent years.  On the occasion of World  Press Freedom Day 2017 it becomes important to view the level of  press freedom in India in the wider context of societal freedom.  Because the press cannot be truly freewhen facilitating freedoms such as the Right to Information and the Right to Internet, and the freedom of expression of  the creative community, are shrinking.
 
 
 
JOURNALISTS UNDER ATTACK
 

Over the last 16 months 54 attacks on journalists in India were reported in the media, according to the Hoot’s compilation.  The actual number will certainly be bigger, because last week Minister of State for Home Affairs HansrajAhir said during question hour in the LokSabha that 142 attacks on journalists took place between 2014-15.
 
Though 7 journalists were killed, reasonable evidence of their journalism being the motive for the murder is available only in one case.
 
The stories behind each of the attacks reveal a clear and persistent pattern. Investigative reporting is becoming increasingly dangerous. Journalists who venture out into the field to investigate any story, be it sand mining, stone quarrying, illegal construction, police brutality, medical negligence, an eviction drive, election campaigns,  orcivic administration corruption, are under attack.
 
Leave alone going out into the field, those who host chat shows in the relative safety of a television studio or voice opinions on social media networks are also subjected to menacing threats, stalking and doxing.
 
The perpetrators, as the narratives of these cases clearly indicate, are politicians, vigilante groups, police and security forces, lawyers (apart from the Patiala House court incident in Delhi in the wake of the JNU protests, there werea  spate of attacks by lawyers in Kerala), jittery Bollywood heroes and, increasingly, mafias or criminal gangs that operate in illegal trades and mining, often under the protection of local politicians and with the knowledge of local law enforcing agencies. Hence, even with clear accusations of the identities of the perpetrators, they get away scot-free.
 
The data with The Hoot shows that law-makers and law-enforcers are the prime culprits in the attacks and threats on the media.
 
 
54  ATTACKS
 

 
 
25 THREATS TO JOURNALISTS

 
Details of attacks and threats
The Silencing of Journalists
 
 
 
NEWS CENSORSHIP
 

1. Governments at various levels attempt censorship, so do private sector media owners.  In the period under review there were a few  outstanding examples of media censorship, of holding back news, and of self censorship. 

2. In June 2016 the Andhra Pradesh government got cable operators across the state to block Sakshi News and  No 1 news channels, on account of their coverage of the Kapu agitation.The leader of the numerically dominant Kapus, MudragadaPadmanabham, a former minister, started an indefinite fast in support of his demands, triggering a tense situation in coastal AP. Sakshi TV channel, owned by Jagan Reddy of the YSR Congress Party, lapped up these developments whereas other media houses reacted very cautiously. Then suddenly Sakshi suddenly went off the air. The  Sakshi Media Group said their channel was blocked in the state.

3. After the killing of BurhanWani the Kashmir media experienced censorship and harassment. In July the offices of the two largest newspapers were raided, their copies seized, their printing presses closed down.

4. In October the Kashmir Reader which was doing a lot of reporting from the ground found itself  banned  for a period which finally extended to three months.  Its editor described  here why it incurred the displeasure  of the state.

5. In November a ban was imposed on NDTV India by the Ministry of Information and Broadcasting for a 24 hour period  for its Pathankot coverage which is supposed to have revealed strategic information about  the operation. The channel moved the Supreme Court against the ban. (See the section in this report on Free Speech and the Courts.) The Ministry put the ban on hold.

6. Also in November, in the wake of demonetization, the Indore District Collector passed an order imposing restrictions on “misleading and objectionable” posts on social media related to demonetisation. P Narhari, in his order, had invoked Section 144 of the Code of Criminal Procedure making such posts or even sharing them on social media platforms a criminal offence in the district. The Internet Freedom Foundation  in Delhi sent a legal notice asking him to withdraw the order.

 
When Tamilnadu chief minister JayalalithaJayaram passed for seven hours by the hospital authorities though  TV channels were  reporting her passing away from fairly early in the evening.  

8. In March 2017 member of Parliament and businessman Rajeev Chandrasekhar got a Bangalore court to issue an ex parte injunction to The Wire to take down two articles about him. This was curious because the website was not the first to point a finger at him for attempting to align the media he owns with the political ideology he supports. Nor was it the first to describe his military-related business interests, even as his public activism has centered on the armed forces.

 
 
Self Censorship
 
 

 
 
On October 6 NDTV’s editorial director Sonia Singh sent an email to staff laying out how discussions and coverage of the surgical strike should be done. As thewire.inreportedSingh said that it had been decided across the NDTV network that it would not give space “to the political bickering that has broken out on the surgical strikes…..no debates, no airtime of my strikes vs yours, give proof etc…whether it is opposition or the govt….only the army…..to explain this.”
 
Under the title India Above Politics, Singh’s email also laid out the menu for the 9 PM news of 6 October– saying“national security cannot be compromised by politics”. An interview done by its anchor Barkha Dutt with Congress leader P Chidambaram was dropped from the evening news.
 
 
 
FREE SPEECH IN THE COURTS IN  2016-17
 
Defamation
Sedition
Bans
Legislature and the media
Community censorship
Digital challenges
 
 
 
As a year in which cases of sedition and defamation, and of censorship of films and other arts reached record numbers,  2016 saw the courts being tested constantly on the issue of  freedom of  expression. Significant orders and rulings in the supreme court and high courts this year spanned the gamut of conflicts between state and journalist, state and artist,  state appointed censor board and film makers, legislature and media, state and political opposition, and the conflict between societal censure and free expression—the right to free speech of  a citizen  versus another’s right to take offence.
 
Perhaps the most significant rulings in the course of the year were on upholding the validity of criminal defamation, and on defamation and sedition, and whether strong criticism would amount to either.
 
 
Criminal defamation, and what qualifies as defamation
 
In May, giving its verdict on a batch of petitions including the ones by Congress vice-president Rahul Gandhi, Delhi Chief Minister ArvindKejriwal and BJP leader Subramanian Swamy, the Supreme Court on Friday upheld the validity of the criminal defamation law.  The court pronounced its verdict challenging the constitutional validity of sections 499 and 500 of the Indian Penal Code providing for criminal defamation. 
 
The law has no chilling effect on free speech, the apex court said. "Right to free speech is not absolute. It does not mean freedom to hurt another's reputation which is protected under Article 21 of the Constitution".  There was dismay over a ruling  which seemed to nullify efforts to decriminalize defamation.
 
A few months down the line, in August, however, the SC clarified that criticism did not constitute defamation.  The year which saw the demise of J Jayalalitha, CM of Tamilnadu, also saw the Supreme Court pull her up earlier in the year for using defamation as a political tool.   It quashed a non-bailable warrant issued against DMDK chief Vijayakanth, and said that criminal defamation proceedings cannot be initiated for merely critiquing the government.  (In the year under review the AIDMK government also filed 16 cases of defamation against in the media in just the first three months of the year.)
 
 
Sedition
 
2016 was a year when sedition went viral and a large number of cases were filed, 18 just between January and June. By the end of the year the figure was 40, according to media reports filed year-wise, state-wise, in the Hoot’s Free Speech Hub.
 
In a case hearing on  September 6  the SC clarified that sedition or defamation cases could not be slapped on anyone criticising the government: “Someone making a statement to   criticise the government does not invoke an offence under sedition or defamation law. We have made it clear that invoking of section 124(A) of IPC (sedition) requires certain guidelines to be followed as per the earlier judgement of the apex court,” a bench of Justices DipakMisra and U Lalit said while hearing a petition by Common Cause on the misuse of the sedition law.
 
In 2017 five cases have been filed so far going by media reports, in Assam, Bihar, Punjab (on 66 students which was subsequently dropped), Haryana, and Delhi.
 
 
Bans as regulation: I and B ministry vs TV channels
 

 
2016 saw three bans imposed on TV channels in the course of the year by the Ministry of Information and Broadcasting, for durations varying from one week to one day. NDTV India  was ordered to go  off air for a day for having revealed "strategically-sensitive" details while covering the Pathankot terrorist attack,  the one day ban quickly became a cause celebre.  The channel moved the Supreme Court   against the ban but the court deferred hearing the case. Care World TV, a health channel upon which a seven-day ban was imposed,  went to court as well and obtained a heartening  order. The Bombay High Court said the order was completely illegal and a breach of the elementary principles of natural justice.  It also observed that larger issue of the power of the central government to impose such a ban would have to be examined.
 
Given that there have been 32 bans imposed by the ministry over the last twelve years, this year may have seen the beginning of a significant push back.
 
 
Legislature and the media
 
In August 2015 an enquiry  committee set up by the UP Legislative Assembly had held staff of two TV channels of the  of TV Today group guilty of breach of privilege of Azam Khan, the Parliamentary Affairs Minister in the Samajwadi Party government in the state, and an MLA from Rampur constituency.
 
In March this year  the Supreme Court stayed the proceedings initiated by the Uttar Pradesh (UP) Legislative Assembly. 
 
This committee had been set up by the Sadan on 17 September, 2013, to examine allegations aired against Khan  in a sting operation telecast on  AajTak and Headlines Today channels in relation to the  Muzaffarnagar riots. It held 48 meetings, it said in its report, examining the evidence and listening to the channel representatives, before it concluded that there had been a breach of privilege.   
 
Senior advocate Soli Sorabjee had filed a Special Leave Petition in the SC under Article 32 of the Constitution. Appearing for the TV Today Network's channels — AajTak and Headlines Today (now India Today) — submitted that UP assembly had no locus standi to direct journalists to appear before it for having conducted the sting operation since it pertained to a matter outside the assembly and did not in any way impede the functioning of the House or any of its members.
 
The case has not been heard by the apex court again, but it constitutes a significant test case on whether media exposing a legislator’s actions outside the assembly can attract a charge of breach of privilege. The detailed report of the enquiry committee does point out though that the legislator had not been given a chance to respond to the expose before it was telecast.
 
 
Triumphing over community censorship
 
In July 2016  came a judgement from the Madras High Court which was hailed  for striking a much needed blow against community censorship of the arts. In 2015 Tamil writer PerumalMurugan had announced his death as a writer after orchestrated protests demanding a ban on his novel  Mathorubhagan (One Part Woman)in his hometown of Tiruchengode in Tamil Nadu. He had been forced to tender an apology at a local peace committee meeting.
 
The Hindu  said in an editorial “The 160-page judgment by a Division Bench headed by Chief Justice Sanjay KishanKaul builds on a series of progressive rulings. It has applied the contemporary community standards test in concluding that there is nothing obscene in the novel.”  It however demurred later in its editorial that the suggestion of the bench that the state should set up an experts body to resolve conflicts such as these could itself represent a compromise. 
 
After the judgement the writer said in a statement that it had given him much  happiness."It comforts a heart that had shrunk itself and wilted. I am trying to prop up myself holding on to the light of the last lines of the judgment, "Let the author be resurrected to what he is best at. Write."
 
The following month, in August 2016,  there was  a victory in a similar case for a Mumbai writer charged with obscenity in 2005  for a  novel published in 1994.  In this case there was no judgementthe  charge was withdrawn 11 years after being filed.  The Hindu reported that a 19-year-old student at the Urdu Department of Mumbai University had registered a complaint at the Jogeshwari police station stating that she found two paragraphs in Mr Abbas’ 1994 novel, NakhlistankiTalash (The Search of an Oasis), “objectionable” and “obscene”. The allegations cost him his job as a teacher at the Anjuman-e-Islam’s English High School and Allana Junior College. The complainant retracted her statement this year and said she had misunderstood the writing.
 
Batting for the media:
 
2017 so far has seen two significant orders from the Supreme Court. 
 
In February it directed the Bihar government to transfer RashtriyaJanata Dal (RJD) leader Mohammed Shahabuddin, the influential accused in the murder in 2016 of journalist RajdeoRanjan, to Tihar Jail from a district jail in Siwan within a week, to facilitate the trial after the CBI said they wanted to conduct his trial in Delhi.  The politician belongs to the ruling coalition.
 
In March the SC dismissed a PIL seeking an SIT probe into the role of media in the AgustaWestland VVIP chopper scam case, saying it is an "attack" on media's independence.  The apex court said it would not direct any investigation against the media unless there was evidence of a direct involvement. There cannot be an investigation into the role of media as a whole, it said.
 
The PIL had been filed by senior journalist HariJaisingh who alleged that alleged that some journalists were bribed and extended unwarranted benefits in exchange for favouring the VVIP chopper deal.
 
 
Digital challenges
Finally the courts grappled with internet bans and offences arising out of social media.
The year saw the Supreme Court rule on the  legality of Internet shutdowns under Section 144 CrPC.   In February the apex court ruled that mobile internet can be banned under this section, dismissed an appeal challenging a judgment of the Gujarat High Court which had upheld the ban on mobile internet under S.144 of Code of Criminal Procedure.  Dismissing the argument that there was a provision for such bans under the Telegraph Act the court said that using this section “becomes very necessary sometimes for law and order. There can be concurrent powers”, remarked one of the judges before dismissing the petition.
 
 
 
DILUTING THE RIGHT TO INFORMATION
 
 
Has the state been complicit in watering down the right to information conferred on Indian citizens via successive laws since  2005? Over the last two years there is increasing evidence of this. Diluting the right to information is a direct denial of the access to information the press needs to do its job. Journalists  increasingly use the law  for  their  own investigations, and frequently rely on the tenacity of the country’s RTI activists to get information about governance.
 
Pointers to dilution of  transparency and RTI
 
1.Rules currently being drafted for an amendment to the Whistleblowers Protection Act have proposed that when an RTI seeker dies his request will stand nullified. RTI advocates fear that this will increase the vulnerability of RTI activists the attacks on whom have increased over the 12 years that the Act has been in existence. The year 2016 ended with the murder of an RTI activist, and on 11April 2017 there was another murder, by attacking a tenacious Pune area activist with concrete blocks.
 
Maharashtra is the state which has both received by far the highest  number of RTI applications among states over 2005-2015, (46.2 lakh, merely a lakh less than the central government)  and has also recorded  25 per cent of  the total murders of RTI seekers countrywide,   since the Act’s inception (16 out of 66). Maharashtra is also the state which has recorded the highest number of attacks on RTI users. The correlation between heightened use of the law, and vulnerability to attack, is clearly discernable. (CHRI data).
 
2. In 2015 the Central Government submitted an affidavit opposing the decision of  the Central Information Commissioner in June 2013 to bring political parties as public authorities under the RTI Act.
 
3. The year 2017 began with an Information Commissioner seeing a transfer of the ministries under his charge, queries in relation to which he was handling.  This was after he allowed a plea seeking examination records relating to the period when the prime minister graduated from Delhi University. Was this request particularly subversive? This IC is a former law professor and the only Information Commissioner out of 14 members of the Central Information Commission who is not a former bureaucrat. 
 
4. The people chosen by the government system to deliver the right to information through the Central Information Commission and the State Information Commissions are increasingly former bureaucrats, though the Act says  they should be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. Administration and governance feature at the bottom of the list.
 
Currently 91.6 percent of the serving Chief Information Commissioners in the states are retired bureaucrats, as are 93 per cent of Central Information  Commissioners. 
 
5. Pointers to weakening of RTI in the states:
 

• In Karnataka  personnel sections of 34 ministers of the state have not declared public authorities under them.
• Telangana has not created a state information commission as yet. 
• The Kerala chief minister has gone in appeal to the state high court against an order by the state information commissioner.
• Information Commissions of Manipur, Madhya Pradesh, Tripura and Uttar Pradesh have not published any annual report on their website till date.

 
6. Pendency
The pendency of second appeals and complaints as on April 1, 2016 stood at 34,982 cases.  RTI activists say these numbers need to brought down to ensure that the applicants get information without any delays. (The Wire)
 
7. Rejection
The highest proportion of RTI applications were rejected not under the permissible exemptions under the RTI Act such as Sections 8, 9, 11 or 24 but under the category of “others”. At 43% rejections recorded under this category, more than four out of every ten RTI applications rejected were for reasons other than those permitted by the RTI Act. (CHRI data)
 
 
 
 
 
 
 
 
INTERNET SHUTDOWNS
 
The Internet was  shut down 31 times in India in 2016, and 14 times already in 2017.  Twelve shutdowns in 2016 were as preventive action, 19 as reactive action. In 2017, 9 shutdowns were preventive action, 5 reactive action.
 
 
Most internet blocks in India are taking place under Section 144 of the Criminal Procedure Code (CrPC), 1973, which gives the state government the power to stop unlawful assemblies of people to prevent public disorder, rioting and so on. It can be brought into force by a notification signed by the district magistrate or a commissioner of police in a metropolitan area. However, legal experts have been arguing against the constitutional validity of imposing internet shutdowns, especially under Section 144 of the CrPC.
 
One argument is that Section 144 does not even contain the appropriate legal power to order a suspension of Internet services, since the power to regulate telegraphs (or the internet in this case) is vested with the Union and not with the state. In that context, any internet shutdown should really take place under Section 5(2) of the Telegraph Act and Section 69A of the Information Technology Act. (The former empowers the Union government to intercept or prevent the transmission of messages under certain circumstances and the latter refers to the blocking of specific websites.)
 
 
Statewise Shutdowns
 

 
(Source: SFLC.in)
 
Longest shutdown:   Jammu& Kashmir in 2016-17.
Following the killing of BurhanWani, Kashmir valley and the Jammu region experienced a suspension of mobile internet services to check the spread of rumors on 9th July, 2016.  Mobile internet services were restored in Jammu region on 26th July, 2016; after being suspended for 17 days. Mobile internet services were reported restored in the Kashmir valley on 19th November for post paid connections and on 27th January, 2017 for pre-paid connections.
 
 
 
Reasons for shutdowns
 
Kashmir
 

• To check rumor mongering
• On operational and security grounds and to prevent law and order situations
• broadband services suspended in light of re-polling in 38 stations of Budgam district.
• Due to bandhs being declared in the Chenab valley

 
Gujarat
Patidar agitation
 
UP
Communal tensions
 
Odisha

• Communal tension,
• To prevent rumour mongering over a social media post

 
Rajasthan

• Communal tension,
• Stabbing of a VHP activist,
• Social media post

 
Haryana
Jat agitation
 
Bihar
Communal clashes
 
Jharkhand
Communal clashes
 
Arunachal
Death of a former chief minister
 
Manipur
Law and order turmoil over economic blockade by the United Naga Council (UNC).
 
Nagaland
Unrest over reservation in local body elections
 
 
 
 
 
CENSORSHIP OF THE ARTS IN 2016-17