Reading time : 12 minutes
Journalism in India has become a very dangerous pursuit during these times. Therefore, it has become even more important to know about the freedom of expression and movement that journalists are entitled to hold as per the constitution of this country. This article aims to draw the reader’s attention to the recent legal developments that have taken strict regulatory measures to censor press and criticism in general via independent media platforms, in pretext of maintaining law and order in the society. For that it is important to understand the scope of freedom provided under Article 19 of the constitution and whether the measures undertaken and laws implemented are arbitrary in nature and thus, violative of these fundamental rights. Article 19(2) is often cited by the courts and the state to justify the measures undertaken for public order and security. This paper will also touch upon those laws that are often being implemented against journalists, violating their right to freedom of expression and movement. The article does that by providing some instances of arrests and arbitrary regulations which have become major hindrances for journalists to bring forth their voices and also a major question of security for media personnels.
Press Freedom under the Constitution
Freedom of press is not specifically provided under the constitution but it is given as a part of freedom of speech and expression under Article 19(1). Press acts as a watchdog over the three organs of government, i.e. legislature, executive and judiciary. But this right is not absolute and the state is entitled to impose “reasonable restrictions in the interests of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to offence” as given under clause 2 of Article 19.
In the case of Romesh Thappar v. State of Madras, the Supreme Court held that the freedom of press is an essential part of democracy and can only be limited through a law, within the definition of Article 19(2).
In the case of Indian Express Newspapers v/s Union of India, the Supreme court outlines three essential elements of freedom of press in India, which are; freedom of access to all sources of information, freedom of publication and freedom of circulation. This states that freedom of press is not just limited to any of the above mentioned but includes all three as primary requisites within the definition of freedom of expression.
This has been rearticulated in various other cases, such as in the case of Secretary, Ministry of Information and Broadcasting, Govt of India and Ors v. Cricket Association of Bengal and Ors, the apex court held that Article 19 incorporates the right to information for every citizen, along with the right to acquire and disseminate information. They also included the right to communicate through all means from print to electronic media. Cyberspace has become a very important source of information in today’s time and for that purpose the apex court has stated that the right under Article 19 would hold the same meaning irrespective of the mode of communication.
Another important precedent was laid down in the case of Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India, where the court held that right to expression of thoughts does not only include thoughts that are ‘accepted’ or are ‘acceptable’ to the people at large. Right to speech and expression include the right to information from all kinds of sources and from all different perspectives.
Legal Restrictions placed during COVID Pandemic situation
Due to the current pandemic situation and lockdown regulations, many laws that have been so far used only under a severe law and order crisis are now implemented to justify undue censorship and restrictions, bordering excessive control of media. This has left several individual journalists or small media houses in a crunch, devoid of protection from threats and arbitrary arrests.
The Disaster Management Act, 2005
The 21 day lockdown with its regulations was imposed under this Act only. To understand how this Act is unreasonably used to arrest journalists, it is important to know some of its targeted sections.
Section 51 punishes those who obstruct any officer or authority in their functioning or refuses to comply with any directions placed by them. Section 52 criminalizes fake claims made by a person, where the person knows it to be false or has reasons to believe it to be false. On the same lines, causing or circulating false alarm about the disaster in relation to its magnitude or severity leading to panic is also punishable under Section 54.
The Indian Penal Code, 1860
According to Section 188 of IPC, if a person disobeys any official order by a public officer which tends to cause obstruction, harm or annoyance, or any risk to that lawfully employed officer, will be a punishable offence. It will be more severe if the act of disobedience runs the risk of danger to human life, health or safety, or causes or tends to cause a riot or affray. Section 269 states that any act done unlawfully or negligently, where the doer knows or has reason to believe that it is likely to lead to a spread of disease dangerous to human life, is punishable for an imprisonment of six months or fine, or both. Section 270 increases the punishment to a maximum of two years of imprisonment if the same act is done malignantly or with a deliberate intention. According to Section 505, making, publishing or circulating any statement or report with an intent to or is likely to induce fear or alarm in the minds of the public or any section of the public and induce them to commit a crime against the state or against public tranquility or induce a class or community to commit an offence against any other class or community is punishable with imprisonment of three years or fine, or both.
The Epidemic Diseases Act, 1897
Section 3 of this Act when read with Section 188 of IPC, punishes all those who violate any of the other provisions mentioned in the Act, which includes circulating fake news, disobeying government guidelines or orders, etc.
Under the Epidemic Act, state governments are also given the power to issue regulations to deal with COVID-19. The Maharashtra government issued regulations prohibiting organisations or individuals from reporting any information about COVID-19 without prior clearance from government health authorities, in order “to avoid the spread of misinformation.”
This is after a Supreme Court case where it held that all information should be official reports issued by the government. This could further mean that whatever data the government provides regarding the virus is the only data available to the general public without any inputs from private sources.
The Information Technology Act, 2000
According to Section 64A of this Act, the central government is granted the power to block contents on electronic media on the grounds that such content is enticing people to commit a cognizable offence. Procedures and safeguards that the government is required to follow are given under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (known as the Blocking Rules). 
This section along with the Indian Telegraph Act, is used to implement internet shutdowns in various places near Delhi NCR border and in the past in Kashmir as well in an attempt to block contents and deal with “fake news.”
In Kashmir, the new ‘2020 Media Policy’ is believed to be enforcing an Orwellian system in the Indian democracy, in the sense that it gives further means to the government to intimidate journalists and control the press. The policy intends to give the power in the hands of the government to decide what information is fake or “anti-national.” Government officials will sit as judges to decide on plagiarism or journalist ethics. This will have a direct or an indirect impact on media regulation or information circulated among the people, shifting the accountability of media houses from the general public to these government officials.
Instances of arbitrary arrests
Free Speech activists have claimed that there have been several arrests of journalists throughout the country, under the Epidemic Diseases Act, 1897, Disaster Management Act, 2005 and several sections of IPC, 1860, “to curb criticism against authorities in the name of the health care emergency.”
Om Sharma, a reporter in Hindu Daily Divya Himachal was reporting on the lack of ration supply in Solan district. His facebook live video on the same was targeted by the local police, claiming it to be false. He was booked for charges under Sections 336, 182, 188 and 269 of the IPC and Section 54 of the Disaster Management Act on March 29, 2020. Another reporter, a cameraman Damodar was arrested from Tamil Nadu’s Minjur district for capturing a picture of a staff at a Public Health Centre for distributing medicines without a proper prescription. He was allegedly charged for cheating, forgery and preventing a public servant from discharging his duty. Pandian, founder and chief executive of Simplicity new portal was arrested under Section 188 and 505 (1) of the IPC, 1860 and under Section 3 of the Epidemic Diseases Act, 1897 for disobeying regulations during a pandemic. This was done as an aftermath of a report published by him on April 18, 2020, which alleged government corruption in food distribution during the lockdown.
There are many such cases reported within the period of pandemic solely on these laws and regulations. Apart from this UAPA is also used ambiguously to stop criticism against the government, labelling journalists as terrorists.
In the World Press Index India has ranked 142 out of 180 countries, with an increase in the cases of murder of journalists in 2020 from previous year. In the case of Alakh Alok Srivastava v. Union of India, 2020, a PIL was filed for the grievances of migrant workers during covid pandemic situation, where the court discussed briefly the role of media. The relevant extract from the order is as follows:
“In particular, we expect the media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media to refer to and publish the official version about the developments.”
After this order, the center has initiated measures to create a web-portal where people can go to “verify facts and unverified news.” This portal is now created. However, it is alleged that the information provided is only what the government wants to circulate.
Also read: LGBTQ
In another PIL, the Journalists Union has moved the court for the inhuman and illegal treatment meted out to them by their employers in the wake of the pandemic. Even though the Prime Minister himself has spoken of the continuing need of media via both print and electronic means, many media organisations have filed termination notices or are paying minimal wages or are forcing their employees to go on an unpaid leave, etc. These measures have financial crippled journalists, especially those who are going into the field already risking their health or in some cases chances of arrest. Their vulnerability came to light through many instances, one of which happened on April 12, 2020, when some journalists reporting in the suburbs of Thane were tested positive for covid. However, even after this incident print and electronic media houses continued coverage. But the media organisations are yet to take the responsibility of testing their employees who are working outside home.
Even now, there is internet shutdown preventing media coverage in protest areas around Delhi borders. Delhi Police had also stopped journalists and others from entering the Singhu border without prior official permission on 2 February, 2021.
With its many challenges, it has brought another shadow pandemic in the field of free and fair reporting of information. Moreover, this pillar of democracy is biting its own roots with corrupt and unethical means of journalism, and public pleasing practices, as is especially seen in the case of big mainstream media houses. They have started to monopolies and flood the general public with useless propaganda and communal bias. This right-wing populism has undermined basic freedom of speech and expression in a democracy. The majoritarian government has laid down enough ground for the media to dance in its tunes, where it shows its favoritism to its mouthpieces and executes arbitrary control over others. In order to avoid further crippling of the press, government regulations should be seen in a wider perspective to include their consequential interpretation. More accountability should be placed with the government while censoring information as fake news or anti-national. The relevance of reasonableness while restricting the fundamental freedom, as given under Article 19 should not be forgotten in the context of press freedom as well. Even if it is not specifically provided under Part III of the constitution, press freedom takes its jurisprudential and constitutional values in the very principles of democracy and accountable government.
 The Constitution of India, art. 19(2), available at: https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf (last visited on February 10, 2021).
 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
 Indian Express Newspapers v/s Union of India, 1986 AIR 515.
 Secretary, Ministry of Information and Broadcasting, Govt of India and Ors v. Cricket Association of Bengal and Ors, 1995 AIR 1236.
Singhal v. Union of India, (2013) 12 SCC 73.
 Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India, (2013) 1 SCC 1.
 The Disaster Management Act, 2005, available at: https://cdn.s3waas.gov.in/s365658fde58ab3c2b6e5132a39fae7cb9/uploads/2018/04/2018041720.pdf (last visited on February 10, 2021).
 Sanjay Ghose and Rishabh Jetley, “When Freedom of Press is Stricken with the Coronavirus,” The WIRE, April 16, 2020.
The Indian Penal Code, 1860, available at: https://www.indiacode.nic.in/handle/123456789/2263?locale=en (last visited on February 10, 2021).
 Supra at 8.
 Epidemic Diseases Act of 1897, s. 3, https://www.indiacode.nic.in/bitstream/123456789/2326/1/A1897_03.pdf (last visited on February 10, 2021).
 The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (known as the Blocking Rules), https://perma.cc/6THW-MKHW (last visited on February 10, 2021).
 Indian Telegraph Act, 1973, No. 13 of 1885, https://perma.cc/RE5G-GR8S (last visited on February 10, 2021); Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Gazette of India, pt. II, § 3(i) (Aug. 8, 2017), https://perma.cc/PG47-UDL5, (last visited on February 10, 2021).
LAW LIBRARY, Freedom of Expression during COVID-19, September, 2020, https://www.loc.gov/law/help/covid-19-freedom-of-expression/freedom-of-expression-during-covid-19.pdf.
 “Ministry of Truth,” The Indian Express, February 10, 2021, https://indianexpress.com/article/opinion/editorials/jammu-kashmir-new-media-policy-6454570/.
 Ayush Tiwari, “Gagging the Media,” Newslaundry, May 7, 2020, https://www.newslaundry.com/2020/05/07/gagging-the-media-a-list-of-indian-journalists-booked-arrested-assaulted-during-the-lockdown.
 Supra at 17.
Arun Shankar, “Police in India’s Tamil Nadu state arrest journalist over COVID-19 coverage,” CPJ, April 24, 2020, https://cpj.org/2020/04/police-in-indias-tamil-nadu-state-arrest-journalis/.
 Geentika Mantri, “67 Journalists arrested, detained, questioned in India in 2020 for their work,” The Newsminute, January 6, 2021, https://www.thenewsminute.com/article/67-journalists-arrested-detained-questioned-india-2020-their-work-140963.
 Preetika Dwivedi, “Supreme Court and the Fourth Pillar,” Bar and Bench, April 25, 2020, https://www.barandbench.com/columns/supreme-court-and-the-fourth-pillar.
 Id at 24.
 “Journalists unions move SC, allege media companies using lockdown for layoffs and salary cuts,” NH, April 17, 2020, https://www.nationalheraldindia.com/india/journalists-unions-move-sc-allege-media-companies-using-lockdown-for-layoffs-and-salary-cuts.
 Shweta Desai, “Who will write for us if we fall sick?: The vulnerability of Journalists during times of Covid-19,” Newslaundry, April 23, 2020, https://www.newslaundry.com/2020/04/23/who-will-write-about-us-if-we-fall-sick-the-vulnerability-of-journalists-during-times-of-covid-19.
 “Police blocks entry to journalists, others to protest site at Singhu border,” The Hindu, February 2, 2021, https://www.thehindu.com/news/cities/Delhi/police-blocks-entry-to-journalists-others-to-protest-site-at-singhu-border/article33728238.ece.
 Sarah Repucci, “Media Freedom: a Downward Spiral,” Freedom House, https://freedomhouse.org/report/freedom-and-media/2019/media-freedom-downward-spiral, (last visited on February 10, 2021).
Author: Kriti Shukla
Editor: Kanishka Vaish, Senior Editor, LexLife India.