The order is an overkill and uncalled for. The only course open to the regime is to withdraw the order forthwith and offer apology to the journalist fraternity, and the people
“Were it left to me to decide whether we should have a Government without newspapers or newspapers without a Government, I should not hesitate a moment to prefer the latter”, said James Madison, “Father of US Constitution”. Madison prepared first draft of the US Constitution, penned down some write ups under the name The Federalist, in particular Federalist No. 10 and Federalist No. 51 to persuade states to ratify the Constitution. He authored First Amendment, guaranteeing the US citizens freedom of press. Madison’s argument in favour of liberty and dissent- called "faction" by him, is of eternal relevance. He argued, "Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency".
His statement on "newspapers without a government" does not exaggerate or overemphasize the importance of press in a democratic system. The free, inquisitive and vibrant press may, even in absence of Government, make people to be alive to their rights and conscious of their duties towards fellow citizens, society, state and humanity. On the other hand a Government without free press would be a tyrant and like a serpent devouring its own children. The struggle for freedom of expression has been tough and arduous. Its history is as old as the history of humankind.
Socrates, in 399 B.C, during his trial on the charge of corrupting the youth of the city State and impiety against the Pantheon of Athens, when offered conditional reprieve retorted, “if you offered to let me off this time on condition I am not any longer to speak my mind … I should say to you men of Athens, I shall obey the God rather than you”. He to uphold the freedom of thought and expression had to sip hemlock.
Socrates became first martyr of free speech, but laid down foundation for free thought and speech and left a legacy to inspire millions of activists in next two and a half millennium. The aspiration was reverberated in Magna Carta in 1215, lesson of Erasmus in 1516, John Milton’s Areopagitica in 1644, Bill of rights in 1689, John Stuart Mills On liberty in 1859- only a few of the milestones on its thorny road.
The freedom of expression does not only mean freedom to speak one’s mind but to speak without any fear or interference from State or non State actors. It implies respect for dissent and disagreement. Voltaire, the celebrated writer and philosopher, in a letter addressed to a colleague, articulating an opposite opinion, wrote “Monsieur l’abbe’, I detest what you write, but I would give my life to make it possible for you to continue to write”. In the words of Justice Holmes, the principle of free thought is not free thought for those who agree with us but freedom for the thought we hate. In “Manufacturing Consent” Noam Chomsky, commenting on the nature and extent of free speech in a fascist regime, points out, “Goebbles was in favour of free speech for views he liked, so was Stalin. If you are in favour of free speech, then you are in favour of freedom of speech of views you despise”.
The invention of press widened the horizon of free expression. The press made it possible to disseminate opinions and ideas to unbelievable extent. The freedom of press therefore, got recognized as an integral part of freedom of expression, that would not only mean free speech but a right to convey and communicate whatever is said, written or depicted through every possible medium, to the intended audience. Freedom of press was held to be a “fundamental personal right” in United States, as back as in 1735, even before the First Amendment. It was three decades thereafter that Bill of rights was introduced and “freedom of press” incorporated as a fundamental right in the US Constitution. The First Amendment prohibits any law abridging the “freedom of speech or of the press”. The freedom of press is so important to survival of democracy that Article 19, Universal Declaration of Human Rights proclaimed by UNGA on December 10th 1949, as a common standard of achievements for all peoples and all nations, provides that “everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
International Covenant on Civil and Political Rights, 1966 speaks in the same vein and so does EU Charter of Fundamental Rights and European Convention on Human Rights. The freedom of press is guaranteed, either independently like the US Constitution or as an integral part of freedom of expression in the Constitution of almost all States.
Freedom of press, highly valued and precious amongst the rights cherished, has been the most vulnerable and victim of frequent attacks by the governments as well as a few social groups. The press curtailment came close on the heels of invention of printing press in 1440. The restrictions on freedom of press assumed many forms like Licensing, Prior restraint, post-publication prosecution for offences namely treason, felony, seditious libel and heresy.
The Indian record of respect for freedom of press is depressing. Though Nehru on May 29, 1951 called sedition law – a relic of British Government, "objectionable” and “obnoxious" yet he and Sardar Patel frowned on judgments in Crossroad and Organiser cases and got Article 19 amended to restrict the Freedom. The bitter memories of censorship of Emergency era still send shivers down one’s spine. Even today India’s rank in Press Freedom Index prepared by Reporters without Borders for 2016 is abysmally low at 133 amongst 180 countries. In 2010, Arundhati Roy was threatened with sedition charge for her comments on Kashmir, Benayak Sen was held guilty of sedition. Narayan Sanyal, Piyush Guha, Asseem Twedi- a political cartoonist, Kanhaya Kumar – JNUSU president and recently AI figure amongst the victims of police action. NDTV is new addition to the list.
The storey in Jammu and Kashmir is no different. Printing and Publication of Daily Hamdard, Front, Mahaz, Huriyat was banned under different regimes and on different dates. Journalists have been detained, attacked and even killed. The telecast of all local news channels was banned in 2010 and now is the worst of all times.
The onslaught of a repressive regime aims at every sphere of oppressed peoples’ life. It ruins economy, savages culture, cripples industry and attempts to corrupt intellect. It kills the oppressed nation in installments. However, the first target always is its press. This all is shockingly accomplished with the help of collaborators amongst the oppressed. A group of people, open to temptation, ready to be corrupted is identified and made to act as arms of oppression, bravo the oppressor and condemn the oppressed. The group comes up with a million false justifications in support of oppression and pretends to heal the wounds inflicted by it.
The present regime in Jammu and Kashmir, true to the practice, made freedom of press its first target. Soon after the regime on July 8th let loose a reign of terror through length and breadth of the valley, the axe fell on the newspapers and social media. The regime during night intervening 16th and 17th July, raided media houses, seized thousands of newspapers ready for distribution, shut down a major printing press and banned newspapers for three days. The undemocratic clampdown was forced to “ensure peace”. The regime, shockingly avoided to issue an order in writing to escape the blame for the gag. A Government official on the basis of direction from the top, simply asked the publishers not to publish the newspapers. The Government on its part disowned the decision and denied to have ordered raids on the press and ban on the newspapers. This type of clampdown is unheard of anywhere in recent past. The Journalist community courageously responded to the situation, closed its ranks, joined hands and declined to resume publication till the responsibility was fixed and guilty punished. However, the matter was tragically closed over a cup of tea, in a drawing room meeting at some official residence. Right course was to demand an official statement disowning the clamp down, identifying the culprit and promising action against him. Instead, the negotiators announced that regrets were expressed, allowing the culprit to hide behind the so-called truce. While bona fides are not to be suspected, those negotiating ignored that not only rights of media but of millions of consumers of information waiting at newsstands in the wee hours for newspapers, were infringed by the ban and the person responsible for the illegal clampdown was required to be identified. The easy reprieve given to the regime emboldened it to impose further direct and indirect restrictions on freedom of press.
The regime during last more than four months used every opportunity to prevent true and honest reporting of the tragic events that have claimed about 100 lives and left more than 1000 blind and thousands maimed. Ishfaq Gowhar, a TV journalist on September 1, faced wrath of Security Forces at Naz Crossing Srinagar. Mubashir Khan, Aman Farooq, Faisal Khan were amongst half a dozen photojournalists thrashed by Security Forces on September 2, at Batmaloo. On September 3, pellets were fired on photojournalists Muzamil Matoo and Zuhaib Maqbool, when a policeman found them discharging their professional duties. These are only few instances of harassment during one week and statistics of entire period of 118 days is bound to be atrocious. The attacks have been condemned by International Federation of Journalists and Committee to Protect Journalists – a US based Non-governmental Organization.
The worst infringement of press freedom has come in shape of the Government Order dated Ist. October, whereby District Magistrate Srinagar, in exercise of powers under Section 144 CrPC read with Section 3 of The Jammu and Kashmir State Newspapers (Incitement of Offences) Act, 1971 Svt (1914 AD) and Section 10 of The Jammu and Kashmir State Press and Publication Act, 1989 Svt (1932 AD) has banned printing and publication of daily newspaper “Kashmir Reader”. The printer and publisher of the Daily has been directed to abstain from printing and publishing the newspaper till further orders so that “disturbance of public tranquility is prevented”. The banned Newspaper is alleged to have published “material and content which tends to incite acts of violence and disturb public peace and tranquility”. The order reads that “content published in the ……. newspaper is of such nature that can easily cause incitement of acts of violence and disturbance of public tranquility in the State….” Kashmir Reader is half a decade old paper, known to be fiercely independent. The newspaper because of bold and fearless reporting has acquired place of prominence amongst the newspapers published from Srinagar.
Freedom of press is a fundamental right and any law enabling the Government to curtail the freedom would warrant strict construction. The gag or restraint order passed under such law is to always call for a hard look. For democracy to flourish, flow of information and debate on public issues should be "uninhibited, robust and wide – open". No doubt Freedom of Press is not absolute but subject to restrictions, the restrictions are to be reasonable and not exceed the minimum required to achieve the constitutionally approved objectives. It would not be permissible to put a blanket ban on the printing and publication of a newspaper on the ground that news carried in future or its comment on the current events may result in violence. The apprehension that speech may result in some violence or in destruction of property is not sufficient to justify its suppression. The advocacy of some conduct or even its approval is not same as incitement. The ban order does not satisfy the constitutionality test, is based on surmises and conjectures and therefore palpably unlawful inter alia on the ground of overbreadth.
Let us have a look at the law pressed into service by the District Magistrate, to order restraint on printing and publication of the newspaper. Section 144 CrPC, empowers a District Magistrate, inter alia to “direct any person to abstain from a certain act, if the Magistrate, considers that such direction is likely to prevent disturbance of the public tranquility”. The power, it needs no emphasis, cannot be exercised in an arbitrary, whimsical or capricious manner. The word, “consider” in Section 144 CrPC, makes it more than clear that the power is to be exercised in a fair and objective manner. To make order permissible under Section 144 CrPC, it must be a reasoned order. The reasons, we know, are live links between what prevailed with the decision maker and the decision. The gag order in question does not give any reasons in support of an extremely harsh decision taken by the District Magistrate. Mere reproduction of the words and expressions used in legal provisions, would not satisfy the requirements of Section 144 CrPC. The order does not even refer to, let alone detail, the material that according to District Magistrate, “tends to incite acts of violence and disturb public peace and tranquility”. The ban order therefore is discriminatory in character, violates Rule of Law and infringes the “equality clause”.
Neither Section 3 (Incitement of Offences) Act nor Section 10 Press and Publication Act, provides for ban on printing and publication of a newspaper. Section 3 confers on a District Magistrate, etc., powers to forfeit a printing press in certain cases, enumerated therein. It visualizes an application made by order of or under authority from the government. In present case no such application appears to have been made. The “credible inputs” cannot be substitute for the application under Section 3, to trigger action. Section 10 Press and Publication Act, again empowers the Government to declare security of press, deposited in terms of Section 9, forfeited in case the printing press is found to have been used for printing any newspaper, etc., containing any words, signs, or visible representation which incite or encourage, or tend to incite or to encourage of commission of any cognizable offence involving violence or other consequences mentioned in clauses (a) to (i). The Government, however, is required to convey to the printing press the “the words, signs or visible representations" that in its opinion are of the nature described in clauses (a) to (i). The content mentioned in the Government order in question, as pointed out earlier, in disregard of Section 10, has not been conveyed to the printing press or banned newspaper. Another aspect of the matter that must not escape notice, relates to nature and extent of the ban. The District Magistrate Srinagar, has invoked archaic laws, promulgated by the Autocrat to suppress freedom movement, not merely to ban a single issue of newspaper but the newspaper itself. While the power may be exercised to ban a book or an issue of a newspaper in rarest cases, publication of a newspaper is not to be banned as the District Magistrate, cannot anticipate the contents of the newspaper yet to be issued. The Government or District Magistrate, did not have any material to jump to the conclusion that the newspaper will continue to publish the material not palatable to it. The gag order therefore, suffers from non application of mind, amounts to arbitrary exercise of power and violates the freedom of press guaranteed under Constitution and International Covenants.
The order is an overkill and uncalled for. The only course open to the regime is to withdraw the order forthwith and offer apology to the Journalist fraternity and the people. Steven Butler, CPJ Asia Programme Coordinator has rightly remarked that “censoring the press will not put an end to the unrest in Jammu and Kashmir”. Repression is not an answer to the uprising. Only a meaningful dialogue with all the stakeholders, for a lasting solution of Kashmir dispute, will usher peace in the region.
Loag mujay qistoon mein qatal karengay shayad
Sab sey pehley talwar meri awaaz pa gir sakti hai.
The author is a former judge of High Court of Jammu and Kashmir.