Freedom of speech in India is slipping down a slippery slope

The good news we were all waiting for in these bleak times came with India’s sensational win in the cricket test series against Australia in Brisbane on January 19. But even as we celebrated good times for Indian cricket, the bad times for Indian journalism and freedom of speech and expression continued.

On the very day we celebrated India’s cricket victory, a court in Kutch, Gujarat issued a non-bailable warrant against senior journalist Paranjoy Guha Thakurta. He was reportedly charged under Section 500 of the Indian Penal Code relating to defamation.

Other journalists, most notably in Kashmir, continue to face arrest and harassment and have been charged under various laws. So why should we take note of this particular warrant against Guha Thakurta?

As this piece in Newslaundry explains, Guha Thakurta had been slapped with a defamation suit by the Adani Group for an article he wrote in Economic and Political Weekly in 2017 alleging that the Adani Group had benefited to the tune of Rs 500 crore because the Modi government had altered special economic zone rules.

Earlier in the year, he had co-written another article on the Adani Group which raised questions about the group evading taxes of up to Rs 1,000 crore. It is the second article that invited legal action. The governing board of the journal chose to have the article pulled down from the website. This led to Guha Thakurta's resignation after a short two-year stint as editor.

The same article had also appeared in the Wire, which too was charged but chose to contest it. The case was finally dismissed in 2019 after Adani unconditionally withdrew proceedings. The case against the Wire, its editors and Guha Thakurta's two co-authors was withdrawn, but not against Guha Thakurta.

A case that lay dormant since 2017 has suddenly found a new life in 2021 and the question everyone is asking is, why now? There could be a simple explanation. On the other hand, this case could be something like a warning being sent out to other journalists digging into the functioning of a powerful industrialist who also happens to be a close ally of the prime minister. A few months ago, some questions were raised in the media about the Adani Group taking over the Mumbai airport after it also acquired six other airports in India. But nothing more has emerged about these acquisitions.

We also cannot forget the continuing incarceration of the young stand-up comic Munawar Faruqui. Picked up by the Indore police on January 1 for allegedly hurting religious sentiments (although the police admit they have no evidence to support this), he continues to be in jail along with five other friends. Each application for bail is turned down despite the lack of evidence as this story on Article 14 sets out. And as if that was not enough, he now faces another case from Uttar Pradesh, for allegedly hurting religious sentiments. These are virtually copycat complaints, filed by members of the Sangh Parivar in states run by the BJP.

It is not hard to figure out why Faruqui is being targeted. Had his name been Suresh or Ramesh or Surinder, would he have received the same treatment? Clearly not. States like Uttar Pradesh and now Madhya Pradesh make no bones about sending out a message to all Muslims that they must behave, or else. They cannot marry or even be seen out with a Hindu girl, and they must not be even suspected of cracking jokes about religion, lack of evidence notwithstanding. Freedom of expression, or freedom of choice, are clearly rights that are available only to some, not all, under these governments.

These two cases, especially that of Faruqui, should have set off alarm bells in this country amongst people who believe that the right to freedom of expression is central to our democratic values. But sadly, with all else that is happening, this could be one more case that will be forgotten. And who knows how long Faruqui and friends will languish in jail for a crime they did not commit. They are joining a galaxy of such individuals across India.

Freedom of expression, and freedom of the press, were also the subjects that featured in an important judgement delivered by the Bombay High Court just a day before the warrant against Guha Thakurta. This was in response to a slew of public interest litigations by a group of former police officers and activists against the “media trial” conducted by some television channels on the Sushant Singh Rajput case.

The 251-page judgement contains much that ought to be debated within the media. It raises important questions about the importance of freedom of expression and how far it can be stretched. It discusses whether the media, particularly the electronic media, has been able to self-regulate as expected. And it sets out some guidelines for media coverage, especially of cases involving death by suicide as in the Rajput case.

The court singled out two channels, Times Now and Republic TV, finding their coverage of the case “prima facie contemptuous” and stated that they played the role of “investigator, prosecutor as well as the judge”. The judgement is scathing. It said, “In an attempt to out-smart each other (for reasons which we need not discuss here), these two TV channels started a vicious campaign of masquerading as the crusaders of truth and justice and the saviours of the situation thereby exposing, what in their perception, Mumbai Police had suppressed, caring less for the rights of other stakeholders and throwing the commands of the CrPC and all sense of propriety to the winds.”

But that said, the court held that it would not be useful to pursue contempt proceedings against the two channels. Instead, it discussed why the guidelines that had already been laid down by the Press Council of India, on coverage of death by suicide (which apply only to the print media), and the advisory sent out by the News Broadcasters Authority, or NBA, last year, were not being followed.

The judgement concludes that the self-regulatory authority set up by the NBA has failed to check the channels that violate these guidelines. It also faults the government for not stepping in despite complaints that clearly related to violations of the provisions of the Programme Code set out under the Cable Television Network Regulation Act.

It recommends that until such time as a proper and effective way to regulate the electronic media is set up, the Press Council of India guidelines on coverage of cases relating to death by suicide should also apply to the electronic media. And it also outlines guidelines for the media and that violating these could invite contempt of court.

It remains to be seen whether such a judgement will tone down the hysterical reportage in some channels on such cases. However, the question that the media as a whole must discuss is whether courts should be laying down guidelines for media reporting.

In the light of the Faruqui case, I will leave readers with the following passage in the judgement, that quotes from the Supreme Court's ruling in LIC vs Manubhai D Shah, 1992. I believe it has a particular relevance for these times: