That the media in India makes news more often than it breaks it has become a truism over the last decade and more. The courts, during this period, have also found themselves dealing with far more media freedom-related cases than before. The Supreme Court’s pronouncements in this regard have become more frequent. Earlier this year, it had to remind the State that the police were constitutionally bound to protect the freedom of expression and that the State should sensitise officers on constitutional ideals. It said that constitutional protection of free speech is not contingent on the popular acceptance of the views expressed.
Last week, it had to underline, once again, the need to protect journalistic freedom when the Andhra Pradesh Police arrested a television anchor and a panellist for comments made on a show on Sakshi TV. The judges granted bail to the anchor, asking how he could be arrested for comments someone else was making. Upon which the senior advocate, Mukul Rohatgi, said the anchor had been goading his panellist and laughing when offensive comments against the women of Andhra Pradesh were made. The good judges did not buy that and gave relief to the journalist, K. Srinivas Rao, who was the show’s anchor.
Just how much of a reflex response ordering a journalist’s arrest has become across the country is documented in a study that was published last month. The state of India’s media freedom has become a compelling subject for research over the last decade, particularly for institutions abroad. This study has been done by The Clooney Foundation for Justice’s TrialWatch Initiative, in partnership with the National Law University Delhi and Columbia Law School’s Human Rights Institute.
Titled Pressing Charges, the report analyses a total of 624 incidents of criminalisation of journalists in relation to their work from 2012-2022. The dataset breaks down 423 criminal cases registered against 427 journalists across the states and Union territories of India to come up with some insights. Those who report from small cities and towns or for local publications were much more susceptible to arrest. Reporters in major metropolises were arrested in 24% of the total incidents recorded in such cities, but this rose to 58% for journalists in small cities/towns and villages. The latter are more vulnerable to arrest and detention because of the lack of legal support and access to justice.
In 65% of the incidents involving journalists from major metropolises, they secured interim protection from arrest, while the corresponding figure for small-town journalists was a horrifyingly low 3%. Perhaps because this relief was most often granted by the Supreme Court, which Hindi and other regional language journalists did not have easy access to. Journalists who are not proximate to high courts or the Supreme Court have greater difficulty in obtaining protection from arrest. Journalists whose employers do not provide a lawyer may face severe financial consequences. This adds to the existing vulnerability faced by journalists at the bottom of the news pyramid.
Across the country, police invoked multiple offences against journalists when they registered cases against them. This was true of close to 90% of the incidents in the research dataset. The authorities also did not always differentiate between coverage of a protest and participation in it. In many cases, journalists were charged with violating multiple laws: over 100 incidents in the dataset involved allegations of breach both of the Indian Penal Code and the Information Technology Act, 2000, which deals with cybercrimes, while the second most common individual overlap was between the IPC and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which were charged together a total of 29 times. “Offences against religion” was invoked a total of 100 times, making up 16% of the total in the dataset. This category was most frequently used against editors rather than reporters and owners.
While defamation charges, which are prosecuted privately rather than by government authorities, were more common against journalists in larger cities and against investigative journalists, offences against public servants were more common in smaller towns and were invoked in relation to journalists’ on-ground news-gathering activities. Criminalisation of reporting has thus put paid to investigative journalism in the states, even when it comes to just reporting without self-censorship. The study shows that this manifested as both an increase in caution and fact-checking, as well as a tendency to dilute statements or refrain from reporting on certain issues. With a rise in cases registered against journalists for their activities on social media, they also mentioned a shift in their own social media activity — they tweeted much less now.
Police cases have also put paid to reporters’ livelihoods. Journalists reported losing career opportunities and being trolled and ostracised by those around them. The registration of the case itself has harsh impacts on journalists and their loved ones. One said, “My daughter faced severe bullying in school. For nearly 2 years, they would mock and humiliate her.”
Even though institutional support was extremely important in mitigating some of these consequences of criminalisation, it was not always available. One journalist lamented that organisations did not stand up for journalists facing criminal charges, and said this was unfortunately the norm in Indian journalism. What solutions exist, then, for this evisceration of journalistic agency? Data collected on the status of the cases show that only 6% saw a concluded trial, ending in either conviction or acquittal.
In Indonesia, for instance, the Press Council and the Indonesian National Police signed a memorandum of understanding outlining a collaborative framework for handling cases involving journalists and media outlets in a way that aligns with the country’s press law with the specific objective of ensuring that complaints about journalistic work are handled by the Press Council before any criminal investigation or legal action is taken.
In other countries, there are enhanced efforts to screen out meritless cases — in particular, Strategic Lawsuits Against Public Participation — at the earliest stages. For instance, in the Philippines, rules initially established to deter SLAPPs against environmental defenders have been applied more widely, creating a burden-shifting procedure whereby once a defendant has made a preliminary showing, the burden shifts to the party initiating the action to show that it is a valid claim and not a SLAPP. And in Thailand, after earlier adopting provisions that sought to provide an early dismissal mechanism for meritless private cases, the Thai authorities are currently considering a bill that would expand these protections in cases brought by public prosecutors.
But these are much smaller countries. There is the bigger challenge of access to justice in a large country such as India. Creating networks to connect journalists in more remote areas with legal support is something that can no longer wait.
Sevanti Ninan is a media commentator. She also publishes the labour newsletter, Worker Web. https://workerweb.curated.co/issues