Mahima Balaji

The newly approved Media Policy, 2020 in Jammu and Kashmir to ‘foster a genuinely positive image of the Government’ has concerning repercussions.

The Jammu and Kashmir administration recently approved the Media Policy, 2020 (the “Policy” or “Media Policy”) that sought to create a “sustained narrative on the functioning of the government in the media.” It has been met with widespread criticism and protests from several journalists and media organisations because it effectively authorises the government to intervene and determine content that qualify as fake news, unethical content or anti-national activities. The Policy allows the Directorate of Information and Public Relations (“DIPR”) to examine such content, on the basis of which journalists may be de-empaneled and have legal action taken against them. Where fake news or news ‘inciting hatred’ or ‘disturbing communal harmony’ shall be proceeded against under the Indian Penal Code, 1860 or cyber laws. 

This is particularly troubling, given the status of free speech in Kashmir. After the revocation of Article 370 of the Constitution of India in 2019, Kashmir witnessed the longest internet blackout imposed in a democracy. Further, in April 2020, Masrat Zahra and Gowhar Geelani were charged under the Unlawful Activities Prevention Act, for social media posts that allegedly glorified “anti-national activities.”

In this context, there is a need to analyse the policy within the narrative of the political landscape of Jammu and Kashmir and realise how it may potentially run afoul India’s constitutional framework, and its international obligations under the International Covenant on Civil and Political Rights (“ICCPR”). 

The Constitutional Question of Free Speech

The freedom of press was read into Article 19(1)(a) in several cases before the Supreme Court of India (“Supreme Court”) over time — Sakal Papers (1961), Bennett Coleman (1972), and Indian Express Newspapers (1984) — where the right of free propagation and circulation without restraint on publication has been recognised. The only grounds for imposing restrictions on the freedom of speech, are those permitted under Article 19(2) of the Constitution. While there is no absolute doctrinal consistency, generally, the key considerations to analyse the validity of a restriction under Article 19(2) are — firstly, reasonableness, secondly, if it is for the purposes specified under the Article, and thirdly, proximity and proportionality.

First, while testing the reasonableness of the Policy, some of the factors considered include, the extent and duration of the restrictions, their underlying purpose, the urgency of ‘evil’ sought to be remedied, and the disproportion of the imposition. It is crucial to highlight that the Policy is for an unspecified period of operation. The framework attempts to set the status quo for media content in Kashmir by legalising an arbitrary framework. Second, while the Policy highlights a purpose specified under Article 19(2) — which is to prevent attempts at using media to propagate information prejudicial to the sovereignty and integrity of India, it would still fail the third test.

In Ram Manohar Lohia (1960), it has been realised that limitations on such freedom must not be arbitrary or excessive, i.e., they must have a nexus with the objective (here, being public order) — highlighting the requirements of proximity and proportionality. Where the question of proportionality is perhaps most critical, given that it allows inquiry into whether the measure is the least violative of one’s rights, and additionally whether there is proximity in terms of the measure and the object sought to be achieved. When the Media Policy is tested against these standards, it is clear that it would not meet the requirements of the test. While the objective seems to be control of propagation of information that is prejudicial to India’s sovereignty, the nature and operation of the measure is certainly excessive. It cannot be said to be the least violative of fundamental rights, and on the contrary, it is perhaps the most intrusive. Given that it allows the DIPR to intervene, control information, and also take criminal action against those journalists who engage with such ‘anti-national’ content. 

Thus, the Policy would essentially fail the balancing test as its substance excessively thwarts journalistic rights and media expression to the point of profound self-censorship; in addition to allowing the Jammu and Kashmir administration to themselves take cognisance of the issue, pass judgment, and impose sanctions against journalists and media platforms. The administrative discretion has immense scope and width in terms of inquiry, leading to criminal consequences – which is also gravely problematic given that the Policy is immensely vague in terms of definitions of what constitutes ‘fake news’ or ‘anti-national’ activities. There is not definitions clause that the Policy carries, and the objectives fail to highlight the exact nature of content that may fall within the realm of these terms. This level of discretion has concrete and negative effects on the freedom of expression of those actively working or engaging with media platforms. 

India’s Obligations under the ICCPR

India is a State that has adopted the Universal Declaration of Human Rights (“UDHR”), and has ratified the ICCPR, making the obligations therein binding. Of these, is India’s obligation to protect the freedom of expression. Article 19 of the ICCPR and UDHR expressly state the right to impart information and ideas of all kinds, regardless of frontiers – a positive obligation. While one may argue at Article 19(3)(b) of the ICCPR contains an exception concerning national security exception or public order, this needs to be read narrowly, with guidance from the Human Rights Committee (“HRC”).

The HRC in General Comment 34 warned that when a State imposes restrictions on the freedom of expression, these restrictions may not put the right itself in jeopardy. Further, the exception contained in sub-para 3(b) of Article 19 cannot operate as a muzzle on the right of free expression where it is used as a justification to abridge democratic tenets and human rights. In this context, the blanket interventionist approach of the Media Policy showcases a severe and disproportionate crackdown on the rights enshrined under Article 19 of the ICCPR (and UDHR). Further, it calls to question the fabric of Indian democracy that arbitrarily puts all news through an administrative filter or checking system, thereby preventing dissemination of information via transparent networks.

The Policy itself cannot be read in isolation. It needs to be viewed in the context of the number of internet shutdowns and disruptions to communication in Kashmir – a phenomenon widely condemned under international human rights law. Domestic initiatives tracking internet shutdowns across India showcase how Kashmir has seen over 200 disruptions since 2012. Internet blackouts not only directly impact the right to free speech and expression, but also curtail the public’s ‘right to know’. It is often a strategy used in conflict-prone regions, but also work as a censorship tool for several governments. Kashmir has seen clampdowns in terms of journalistic expression, particularly in the recent past. 

Conclusion

The Office of the UN High Commissioner noted in 2019, that the Kashmir valley continues to be a dangerous region for journalists – in terms of curtailments of free speech itself, as well as violence against journalists. In fact, India’s performance on the World Press Freedom Index has not been encouraging either. In 2020, out of 180 countries, India ranked 142nd – where the methodology is based on some indicators such as –  media independence, abuses, transparency, and the legislative framework. It is within this socio-political and legal environment that the Media Policy needs to be read, and just not the dominant narrative of India being the world’s largest and most vibrant democracy.

The operation and effects of the Policy, that allegedly tries to ‘monitor’ dissemination of information and showcase ‘progress to people in an effective manner’, are deeply problematic. It categorically denies the people of Kashmir the right to freedom of expression. It also impairs the ability of the rest of India (and world) to engage with the reality of the existence in Kashmir by permitting the government to engage in selective exposure of facts. The consequence leads to averting any possibility of criticism or backlash that may emerge. Broadly, it showcases a fundamentally draconian step to shape a narrative for the ruling party.

It is noteworthy to mention that in 2015, in Shreya Singhal vs. Union of India, the Supreme Court declared Section 66A of the Information Technologies Act, 2000, constitutionally invalid. This was an important step in preserving the freedom of expression, particularly in the online platform. The primary reason for such a ruling was that the Court observed there to be a ‘chilling effect’ on the freedom of speech and 66A was struck down on the grounds of over-breadth. This, read with the 2020 Supreme Court decision of Anuradha Bhasin vs. Union of India, declaring freedom of expression over the internet enjoying constitutional protection, potentially provide a basis for Indian courts to declare the Media Policy void for its vagueness, intrusive extent, and blanket operation. 

The Author is a final year student at Jindal Global Law School, Sonipat.