Sukumar Muralidharan on Free Speech and the Right to Know

(On 22nd June 2015,  Thma U Rangli Juki (TUR) organised an interactive session with journalist Mr. Sukumar Muralidharan on  “Free Speech and the Right to Know: The Media in a Time of Conflict”. This was done in light of a judgement of  Meghalaya High Court restraining the media from publishing any news about Bandhs and agitations. Raiot is publishing the Sukumar’s presentation that day.)  

Shillong High Court ruling lays out broad grounds for restraining media reporting

A recent ruling by the Shillong High Court criminalises reporting of the activities and statements of a particular militant group believed to be operating from the territory of the neighbouring state.

Though its immediate reference is to the HNLC, the judgment also includes a broad prohibition on reporting on unnamed groups — referred to under the broad category of “any other organisation which may have the effect of disturbing the event tempo of public life in the state of Meghalaya having a long international border with Bangladesh”.

This rather severe judgment is an outcome of the judges taking cognisance suo motu of the disruption to public life caused by a forty-eight hour bandh called by the HNLC.

Using press clippings and other information sources assembled for it by the Registrar of the High Court, the bench presided over by the Chief Justice, invoked a ruling by the Kerala High Court in 1998, that an enforced general strike or bandh is on the face of it, an illegality and a violation of the fundamental rights of the common citizen.

The Kerala High Court judgment was since upheld by the Supreme Court in a summary, one paragraph order, though without quite dispelling its many inherent ambiguities. There is for instance, despite the endorsement by the Supreme Court, no clarity on how a bandh – understood as a coercive imposition on society at large by a few actors – differs from a hartal which is a legitimate and supposedly unforced exercise of the right to free speech and expression.

The foundations are not very sound. But the Shillong High Court goes so far as to order that notice be issued to all shops and business establishments, and in particular to medical shops, hotels and taxi-operators, for “staying away from their lawful avocation and for keeping their establishments closed despite repeated …. assurance(s) issued by the state government that they shall be provided adequate protection on their place of occupation/business”.

All state and central government offices similarly are required to file “affidavits regarding the position of attendance of staff” on the day of the bandh and in the event of any future such event. This seems to indicate that the court intends to institute some manner of punishment against those deemed delinquent in their discharge of assigned official duties.

Is it possible to enforce these broad punitive sanctions against a number of social actors on the basis of the Kerala HC ruling on the illegality of bandhs?

Is it possible to distinguish with sufficient clarity between a bandh and a hartal?

Ezra Rynjah & Sukumar Muralidharan
Ezra Rynjah & Sukumar Muralidharan

The background to these questions would be:

  • The circumstances of the constitutional debate on freedom of speech;
  • What were the considerations that impelled the Constituent Assembly to adopt language that made free speech a virtually untrammelled right?
  • What were the conditions under which the first amendment to the constitution was enacted, allowing for “reasonable restrictions” on the right to free speech?
  • The subsequent course of legislation on the press;
  • The Unlawful Activities (Prevention) Act of 1964 which made curtailment of the fundamental rights permissible in certain circumstances, including threats to national unity and integrity.

The position in a narrow interpretation of the law would be very clear. The HNLC is an unlawful organisation under the UAPA. It stands stripped of fundamental rights, including the right to free speech. So it does not have the right to call a bandh.

We can deal with the rights and wrongs of this matter later.

The Shillong High Court order goes beyond proscribing the agency of the HNLC, it also permits the authorities to define an offence against the fundamental rights by “any other organisation”.

Transgressions of the law should be clearly defined and should not leave room for any actor – whether an agency of the state or otherwise – to create an offence using over-broad judicial or legislative language.

If HNLC is a banned organisation, can we deny that its actions have implications for daily life? So is it not a matter of public interest that its intent to call a general strike should be reported in a manner that will enable an informed decision by citizens on how they should deal with contingencies that could arise?

How do we draw the line between fulfilling a legitimate information need and playing an overtly partisan role? Between informing the public so that they are able to arrive at a responsible decision and fuelling a sense of panic?

Recent events have brought the right to free speech to the forefront as a deeply contested issue. This is a right which is often read down — as one that vests in a narrow sense, in the organised media industry. This construction fails to meet the standards of today’s democratic societies, where access to the sources of information is rapidly widening.

How do we understand the limits to an individual’s rights in a liberal democratic political order?

Sukumar Muralidharan speaking on Free Speech
Sukumar Muralidharan speaking on Free Speech

How do we legislate on free speech and the public interest?

The popular saying is that my right to swing my arms around ends where a fellow citizen’s nose begins. My right to call a bandh ends where it endangers the rights of others.

Can we understand the free speech right within the paradigm of positive and negative liberty associated with Isaiah Berlin and the very important critique of this dual conception by the political theorist C.B. MacPherson.

This critique when transferred to the realm of free speech, would yield the principle that everybody, irrespective of whether he has ownership stakes or not, should be able to participate in the sovereign processes of information dissemination employed in a society. This aspect has come up in tangential ways in many of the debates on the fundamental rights in India, without ever being accorded the salience it deserves as a principle.

In the formal sense, an unconditional investiture of rights in the constitution was gradually rescinded as an increasing number of exceptions were introduced, including in the right to free speech. The boundaries of free speech have been negotiated continuously over the years since India became independent. Increasingly, it shows, reasons of state security became the grounds for restricting the fundamental rights, including the right of free speech. Because of a lack of clarity in phraseology, and the inevitable hiatus between executive action and judicial review, the reality became one where powers of restricting free speech by state and civil society actors became virtually untrammelled.

Why we need to fight for clear and unambiguous judicial precedents

Judicial precedents in matters involving the basic rights are weakly established and often disregarded. There have been a number of cases when journalism was threatened by the invocation of the most severe provisions of law, under the broad rubric of state security. In some notable cases, this invocation of the law has been quashed, but this has been more in tribute to the power of the media as a business than to the right of individual journalists and smaller publications to report fairly and fearlessly.

The specific challenges faced here need a coordinated response from journalists’ bodies, which goes beyond contingent disagreements and focuses on the broader principles.

It is also necessary to reflect on some of the tensions inherent in the dual construction of information: as a commodity and as a human right.

Two-sided nature of the media market

The media functions by transacting two kinds of information. Media output is a product that is sold twice over. Because of this unique feature, it was often considered that a lower subscriber price may not serve the cause of consumer sovereignty, because that would imply a higher advertiser stake in the product.

A liberal democracy allows for few institutional restraints or regulations on the functioning of the media, leaving the marketplace of ideas as the final arbiter. In matters that vitally involve the public interest, where there is a risk of social disorder or offence to good taste, decisions are left to the prudence and social responsibility of the media.

Yet the maintenance of a reasonable balance in the advertisement-editorial chemistry – between the first sale of the media to the advertiser and its second sale to the subscriber — has been a matter of social concern. Policy has sought to ensure that the advertiser’s preemptive claim to media space does not skew the competition in the marketplace for ideas. But these efforts have been unsuccessful and from this has followed the larger failure: of advertiser power gradually taking over editorial space.

The record in radio and satellite TV broadcasting has been ambiguous, with the public right to free speech and information, being relegated in a series of judicial findings, to relatively lower priority in relation to the media industry’s right to commerce and profit.

Advertising growth began slowing down since the global financial meltdown of 2008. And as the media industry began losing momentum after the rapid expansion of the first decade of the millennium, mergers and acquisitions gained pace. The consequence has been a pronounced tendency towards concentration of ownership and a persistent and so far successful effort by the media industry to keep an informed discussion on the issue out of the public domain. Denial of a fair opportunity for all voices in the public sphere is an effective denial of democracy.

The struggle for decent wages and working conditions for journalists

India is unique in having a legislation protecting the wages and working conditions of journalists as part of its framework of laws on media freedom. The link has not always been obvious, since the media industry has in repeated onslaughts against the law, sought to portray it as an active impediment to the constitutional right to free speech.

The most recent such effort came in the aftermath of the wage award determined by the G.R. Majithia Wage Board for Working Journalists and Other Newspaper Employees in December 2010, notified as law by the Union Government in November 2011. In a challenge to the constitutional validity of the whole process of statutory wage fixation, a coalition of newspaper industry entities questioned the very foundations of the wage board process, which had been discontinued in most sectors of the economy. It also argued before the Supreme Court, that the Working Journalists’ Act – enacted in 1955 and subsequently amended to make it more inclusive in 1974 – was fundamentally at odds with the constitutional guarantees on free speech and the freedom to engage in commerce.

In its judgment on this batch of writ petitions, rendered on 7 February 2014, the Supreme Court held all these arguments void. If the judicial position on the constitutional validity of a measure of protection for journalists’ wages and working conditions has remained unchanged for close to six decades, realities on the ground have altered radically. With journalists’ unions fragmenting and the newspaper industry organising better to press its interests, the scenario for decent and dignified work in the media profession has turned adverse.

The consequence has been, among other things, an epidemic of corrupt practices in the news industry, now identified by the omnibus term “paid news”. This was the subject of an inquiry by the Press Council of India in 2010 and a report by the Standing Committee of Parliament in 2013 – both of which identified the declining professional security of journalists as a contributory factor to the rampant abuses. This chapter traces the evolving jurisprudence on the protection of journalism as a profession, identifying key battles that were lost. This would point the way towards a reaffirmation of the basic values of the profession, at a time when new media technologies potentially make every citizen a participant in the news domain.

 

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