How Supreme Court Protected Press Freedom In 2021
Manu Sebastian
21 Dec 2021 6:20 PM IST
2021 was a year where India retained its low ranking of 142 out of 180 countries, as in the year before. Reporters Without Borders (RSF), a French NGO which prepared the Global Press Freedom Index said, "India is one of the world's most dangerous countries for journalists trying to do their job properly".2021 was also a year where one saw the Supreme Court making crucial and timely...
2021 was a year where India retained its low ranking of 142 out of 180 countries, as in the year before. Reporters Without Borders (RSF), a French NGO which prepared the Global Press Freedom Index said, "India is one of the world's most dangerous countries for journalists trying to do their job properly".
2021 was also a year where one saw the Supreme Court making crucial and timely interventions to protect journalists who were facing threats and criminal law process for doing their job.
Pegasus Case
The most notable was the Pegasus case, where the Supreme Court ordered the constitution of an independent expert committee, led by former SC judge Justice RV Raveendran, to investigate the allegations of snooping of journalists and activists using the Pegasus spyware. A bench led by the Chief Justice of India NV Ramana said that it was constrained to order an independent probe in view of the refusal of the Union of India to make a clear denial about using Pegasus for surveillance purposes. Significantly, the bench expressly rejected the argument of "national security" raised by the Central Government to block the probe into the matter.
"..the Respondent-Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State. However, this does not mean that the State gets a free pass every time the spectre of "national security" is raised".
The Court made a strong pronouncement in that case that surveillance of journalists will cause a chilling effect on the freedom of the press, which in turn will weaken democracy.
The order is also notable for its acknowledgement of the importance of protecting journalistic sources.Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potential chilling effect that snooping techniques may have, this Court's task in the present matter, where certain grave allegations of infringement of the rights of the citizens of the country have been raised, assumes great significance. In this light, this Court is compelled to take up the cause to determine the truth and get to the bottom of the allegations made herein".
The judgment was widely welcomed by civil society. In an interview with LiveLaw, veteran journalist N Ram, who was one of the petitioners in the case, said that the judgment was a "big win for investigative journalism". The petitioners had relied upon the investigative reports published by "The Wire" and few international publications regarding the use of Pegasus spyware.
Case :Manohar Lal Sharma versus Union of India and connected cases, LL 2021 SC 600
Win For Investigative Journalism : N Ram On Supreme Court's Pegasus Order
SC protects journalists in sedition case over tweets about farmers protests
In February, the Supreme Court stayed the arrest of Shashi Tharoor MP, journalists Rajdeep Sardesai, Vinod K Jose, Mrinal Pande, Zafar Agha, Anant Nath and Paresh Nath over multiple FIRs registered against them over their tweets/reports about a farmer's death during tractor rally.
The FIRs were lodged in multiple states like UP, Madhya Pradesh and Delhi over the tweets/reports made by these persons regarding the claims of a family that their son was shot-dead by the police during the tractor parade on January 26.
Patricia Mukhim's case
On March 25, the Supreme Court quashed the FIR registered against Shillong Times Editor Patricia Mukhim over a Facebook post on violence against non-tribal people in Meghalaya.
The Meghalaya police had registered the FIR under Section 153A and 505(1)(c) of the Indian Penal Code alleging that Mukhim's Facebook post had the tendency to create communal disharmony and public disorder. The Meghalaya High Court had earlier rejected her plea to quash the FIR, following which she approached the Supreme Court.
A bench comprising Justice L Nageswara Rao and S Ravindra Bhat held that Mukhim's post was highlighting the apathy shown by the authorities in not taking action against culprits who attacked non-tribal youth. Importantly, the Court held that the writing has to be analyzed as a whole, in the backdrop of its context, to gather the intention for the offence under Section 153A. "One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning", the Court said.
"The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya. In our understanding, there was no intention on the part of the Appellant to promote class/community hatred", the Court added.
Significantly, the Court also acknowledged in the judgment that when victims of State apathy express their resentment in a public forum, "it is really a cry for anguish, for justice denied – or delayed".
Case : Patricia Mukhim versus State of Meghalaya, LL 2021 SC 182
Vinod Dua case
On June 3, the Supreme Court quashed an FIR for sedition registered by the Himachal Pradesh police against senior journalist Vinod Dua(who passed away recently).
The FIR for offences of sedition, public nuisance, printing defamatory materials and public mischief under the Indian Penal Code was registered in 2020 on a complaint by a BJP leader against a video show of Vinod Dua where he had criticized the Prime Minister and Narendra Modi for the migrant workers' crisis during the national lockdown. A bench comprising Justices UU Lalit and Vineet Saran held that the criticism by Dua did not amount to sedition or any other IPC offence.
"Every Journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124A and 505 of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh", the Court observed in the judgment.
Earlier in 2020, the Court had given interim protection to Dua, after hearing his case urgently on a Sunday. The Court observed that the statements made by Dua were "certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence".
"A citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government or with the intention of creating public disorder", the Court added in the judgment.
The bench however rejected the prayer that no FIR be registered against a person belonging to media with at least 10 years of standing unless cleared by the Committee as suggested. This would amount to encroachment upon the field reserved for the legislature, the bench said.
Case : Vinod Dua vs. Union of India [WP(Crl) .154 of 2020], LL 2021 SC 266
Citizens making SOS calls in social media during COVID second wave should not be penalized
During the peak of the COVID second wave, the social media was filled with citizens making distress messages seeking oxygen cylinders and essential medicines. At the same time, there were also instances of police taking action such social media posts, alleging that they were false alarms.
Taking serious note of such instances, the Supreme Court issued a stern direction to all states that there should be no clampdown on citizens' making SOS calls in social media seeking aid during the COVID pandemic.
A bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat stated in their order as follows :
"...it is with deep distress that we note that individuals seeking help on such platforms have been targeted, by alleging that the information posted by them is false and has only been posted in social media to create panic, defame the administration or damage the "national image". We do not hesitate in saying that such targeting shall not be condoned, and the Central Government and State Governments should ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid. If this does keep happening even after the current order, this Court shall be constrained to use the powers available to it under it contempt jurisdiction. We also direct that all Directors General of Police shall ensure compliance down the ranks of the police forces within their jurisdictions".
Recognizing the plight of the citizens, the Court added, "In these trying times, those desperately seeking help for their loved ones on these platforms should not have their misery compounded through the actions of the State and its instrumentalities".
Case : In Re Distribution of Essential Supplies and Services During Pandemic, Suo Moto Writ Petition(Civil) No. 3/2021, LL 2021 SC 236
Supreme Court protects Andhra TV Channels in sedition case; speaks of need to define the limits of the laws
In May, the Supreme Court on Monday stayed coercive action against two Telugu channels - TV5 news and ABN Andhra Jyoti- in the FIRs registered by Andhra Pradesh police alleging sedition against them.
The channels knocked the doors of the Supreme Court contending that contended that the FIRs were registered for publishing the press statements of rebel YSCRP MP Raghu Rama Krishnam Raju.
A bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat expressed a prima facie view that the FIRs are an attempt to "muzzle media freedom".
The bench observed that there was a need to define the scope of offences under Section 124A (sedition) and 153A (promotion of communal hatred) under the Indian Penal Code, especially in the context of media freedom.
"...we are of the view that the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights,even those that may be critical of the prevailing regime in any part of the nation", the bench observed in the order.
SC expresses alarm at the increasing rise of sedition cases
In April, a 3-judge bench of the Supreme Court admitted and issued notice on a writ petition filed by journalists Kishorechandra Wangkhemcha and Kanhaiyalal Shukla challenging the constitutionality of Section 124A of the Indian Penal Code, which deals with the offence of sedition. The plea highlighted the increasing use of sedition law to muzzle critical voices against the government.
That the Supreme Court issued a notice in the petition possibly indicates a willingness on its part to revisit the Kedarnath Singh judgment, which had upheld Section 124A in 1962.
Three months later, a bench led by the Chief Justice of India, while considering another petition challenging Section 124A IPC, asked the Attorney General for India if it was still necessary to retain this colonial-era"
"If we go see history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item, uses it to cut the entire forest instead of a tree. That's the effect of this provision", CJI told the AG
The Attorney General replied that the section may not have to be repealed and parameters may be laid down to use the law of sedition.
Section 66A IT Act Cases
Section 66A IT Act, which was struck down by the Supreme Court in the Shreya Singhal case, is yet another provision which is being used to harass critics and journalists for their social media comments. The Supreme Court expressed shock at the fact that FIRs are continuing to be registered under this struck down the provision. In an application moved by the PUCL, a bench led by Justice RF Nariman warned strict action against police if they continue to invoke Section 66A. The bench also sought for details from States about the FIRs registered under this provision after it has been struck down.
SC orders release of activist detained under NSA for Facebook post
In July, a bench led by Justice DY Chandrachud ordered the release of Manipur based political activist Erendro Leichombam, who was detained under the stringent National Security Act over a Facebook post that cow dung or cow urine will not cure COVID. Following the Supreme Court order, the Manipur High Court ordered the release of journalist Kishirechanra Wangkhemcha, who was also detained under NSA for a similar FB post.
The plea of Erendro for compensation for illegal detention is currently pending in the Supreme Court.
Protection given to "The Wire" reporters in UP Police FIRs
