DPDC PRACTICAL GUIDE SERIES | ARTICLE 19

10 March 2022, 05:05 am

Introduction

Advent of technology in the past decade has led to a boom in electronic media. The press, which now includes not only print media but also digital media (e-papers, blogs, digital news aggregators, apps, etc.), has a wider outreach than its traditional form. This allows faster dissemination of information and facilitates real-time reporting and commentary. The manifold-increase in audience puts added responsibility on journalists to avoid the spread of disinformation and also requires the State to develop tolerance towards widespread criticism to ensure that the right to freedom of press does not merely remain on paper.

Journalists claim that journalistic freedoms in India are more under threat than ever. Between 2015 and 2021, 19 cases of sedition have been filed against 38 journalists in India. There has also been an increasing number of instances where journalists have faced (or are facing) defamation actions (civil and criminal), physical attacks, and hate speech for their critique. At a time like this, it is important to remind all journalists about the rights they possess under the Indian Constitution and how they can effectively enforce them.

As a part of this Practical Guide Series, in collaboration with Bharucha & Partners, we provide a comprehensive guide on the rights available to journalists in the Indian legal regime and offer practical tips. Through various parts of this Series we will cover issues relating to the reasonable restrictions on free speech, civil and criminal defamation, offences against the State (including sedition and the Unlawful Activities Prevention Act), the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, reporting on ongoing investigations, safety of female journalists, use of facial recognition technologies and other laws affecting the freedom of speech of journalists.

In part I of this series, we discuss the fundamental rights available to journalists under Article 19 of the Indian Constitution and the reasonable restrictions placed thereon. This is the starting point from which all rights and restrictions that will be discussed in this Practical Guide flow.

What is the Right to Free Press?

The right to freedom of press is integral to a democracy and flows from the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Freedom of press means that the Press has the freedom of publication, freedom of circulation, to engage in political discussions, and freedom against pre-censorship. But it must be noted that, the liberty of the press stands on no higher footing than a citizen’s right to freedom of speech and expression and no privilege attaches to the Press as such.

Other rights that form a part of the press’ right to freedom of speech and expression are given below:

RIGHTS/FREEDOMS YOU HAVE	WHAT DOES IT MEAN FOR YOU?
Right to telecast/broadcast	You have the right to telecast/broadcast your reporting through various forms of media. A corollary to this is that if a law enforcement agency or officer requests your audio or video recordings, camera, recording devices, equipment or notes, you may refuse and request that the official contact your media outlet (in case you are a part of an organisation) or your lawyers (if you are a freelancer.)
Right to information	The right to information extends to varied contexts from advertisements enabling the citizens to get vital information about life-saving drugs, to the right of sports fans to watch cricket and the right of voters to know the antecedents of electoral candidates. Freedom of speech and expression includes the right to impart and receive information which includes freedom to hold opinions. Therefore, when you provide such information to the citizens through your reporting, it is not only protected by your rights but also of the citizens’ who have the right to access information. Your right to information under the Right to Information Act, 2000, which allows investigative journalists the right to seek information from government departments also traces its origin from Article 19.
Right to hold demonstrations	You can hold orderly and peaceful/non-violent demonstrations which are visible expressions of ideas. Note that strikes or bandhs are not protected under this right.
Right to reply/criticize/dissent	You have the fundamental right to form your own opinion and express it. You can use the media to reply to/criticize a propagated view. Open criticism of government policies and operations is not a ground for restricting expression.
Right to interview	You may interview any person with their consent.

Apart from the freedom of press, journalists, as individuals, have a fundamental right under Article 19(1)(g) of the Constitution to carry on their profession freely. They also have a fundamental right to move freely across the country, under Article 19(1)(d), and to form associations or unions, under Article 19(1)(c). All these rights, however, can only be enforced against the State and not against private individuals or entities.

Is this right absolute, or are there limits to it?

The Indian Constitution does not consider the right to freedom of speech and expression as absolute. It places reasonable restrictions on the exercise of such rights. Therefore, the aforementioned rights are to be exercised with caution. The reasonable restrictions can be placed in the interest of:

Sovereignty and integrity of India
The security of the State
Friendly relations with foreign States
Public order
Decency or morality
In relation to contempt of court
Defamation
Incitement to an offence

Similarly, the State can make laws that reasonably restrict the fundamental right to practise any profession, or to carry on any occupation, trade or business in the interest of the general public.

This means that you cannot do things like:

Trespassing on private property to report;
Crossing barricades/lines placed by the police at crime scenes to report;
Violating any legally implemented location restrictions or barriers;
Recording video or audio of law enforcement activities, when such recording is causing interference with or obstructing law enforcement activity;
Escalating an enquiry/confrontation with a police officer by touching them or directly disobeying a lawful order; or-
Publishing stories defaming a person without any backing evidence or when you know it is not true;

“What feels illegal, but isn’t”

Fair criticism of government policies or actions
Fair criticism of specific act of those in power
Factual investigation of instances of communal violence
Reporting a rape case without revealing the identity of the victim
Reporting on communal violence
Reporting on protests against government policies or actions

If a government agency, or officer prevents you from reporting on any issue on any grounds other than the ones mentioned above, they are said to have unreasonably restricted your rights.

Restrictions

From a practical lens, restrictions on the right to free speech, or to practice one’s profession or to move freely can be categorised into two heads (i) restrictions imposed by the State by enacting laws, and (ii) those imposed by the police by implementing them at their discretion.

By the State
A restriction placed on the exercise of Article 19(1)(a) can be in the form of a legislation, delegated legislation (regulations), or an executive order. For example,

Section 66A of the Information Technology Act, 2000 (IT Act) was declared unconstitutional by the Supreme Court. The section penalised sending “offensive messages” via online communication. Owing to excessive vagueness in the law, the provision was often abused by enforcement authorities and caused a chilling effect on speech over the internet,
Section 69A of the IT Act allows the executive to pass orders for blocking and takedown of online content,
government officers passing local orders restricting reporting on COVID-19, etc.

The validity of these restrictions is ultimately decided by a constitutional court of law, i.e., the high courts or the Supreme Court of India. The following standards have previously been applied by courts of law to adjudge the reasonableness of a restriction:

Reasonableness of the restriction is to be determined and not reasonableness of the law.
Reasonableness will be identified by an objective standard and not by a subjective one. It will be decided from the point of view of what a normal reasonable man would feel.
The restriction cannot be be arbitrary or of excessive nature and should have a reasonable relation with the object it seeks to achieve
An indicative list of 5 factors has been considered in the past to establish reasonableness:
- Nature of the right infringed
- Underlying purpose of the restriction imposed
- Extent and urgency of the evil sought to be remedied
- Disproportion of the imposition
- Prevailing conditions at that time
- Restriction imposed for securing objects laid down in the Directive Principles of State Policy may be regarded as reasonable

By the Police
The restrictions placed on the exercise of fundamental rights in the Indian Constitution come with a possibility that they can be imposed at the whims and fancies of police officers. This makes Part III of the Constitution on fundamental rights not only restrictive, but also, arbitrary since it is subject to individual views, opinion and interpretation of police officers. Similar issues can arise even in delegated legislations which grant unguided and unbridled powers to government officers to restrict fundamental rights.

What can you do if your rights are being unreasonably restricted?

If the exercise of your fundamental rights mentioned above is unreasonably restricted, you can challenge such restriction before the various high courts or the Supreme Court in a writ petition. The onus is on the State to justify the restriction and not on you to prove that it is invalid.

A writ petition can be filed under Article 32 of the Indian Constitution before the Supreme Court for enforcement of fundamental rights. Whereas, a writ petition can be filed before any high court in the country under Article 226 for enforcement of not only fundamental rights but also any other legal right. In that sense, the scope of Article 226 is wider and covers a wider range of challenges as opposed to Article 32.

After a writ petition is filed, upon hearing the Petitioner, the courts may or may not ‘issue notice’ in the matter. In the context of a writ petition, it means that the matter has been admitted for hearing before the court and the Respondent is to be provided a notice of hearing. After the Respondent files a reply, and the Petitioner may file a rejoinder (if required), the pleadings stand complete and the matter is heard by the courts for adjudication. In the cases where additional documents are required to be submitted, the leave of the court has been taken by means of an application. In cases where urgent relief is required, the Court may decide interim issues even before the pleadings are complete or sometimes (depending on the nature of the urgency) even before notice for appearing is issued to the other party.

We hope that this information helps you understand your rights as a journalist reporting in India. The next guide on the series will address the issue of defamation.

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DPDC has successfully conducted 29 sessions between Sept 2021 and Feb 2022 and the lawyers were able to provide pro bono legal aid to 24 journalists. If you are a journalist in need of legal aid, fill this form or write to us at [email protected].

This Guide was prepared with assistance from Bharucha and Partners. This blogpost, or any other blogpost published as a part of this practical guide series does not constitute legal advice.

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