FREEDOM OF PRESS IN KASHMIR, OR THE LACK THEREOF
The author, Karina Katrak, is a third-year law student at Maharashtra National Law University Mumbai.
"Our liberty depends on the freedom of the press, and that cannot be limited without being lost."
- Thomas Jefferson
Once famously described as “paradise on earth”, Kashmir has now come to be a hot-spot of violence, terror, and repression. The varied nature of the human rights violations and complete denial of justice in Kashmir caused by the imposition of draconian laws on the Kashmiri people, both prior to and post August 5th, 2019, are simply devastating. The quote above relates to one such horrific aspect of the injustice meted out to the Kashmiri people - the curtailment of their freedom of speech and expression and the gradual demolishment of local press and fear-free journalism.
Through this paper I aim to shed light upon the theories that the freedom of press is grounded in, the unjust character of the laws curbing the press vis-à-vis human rights and the restrictions placed by the press before the imposition of the New Media Policy in particular. I will also address the relationship between the freedom of press and other collective rights, and how the two may be balanced. My goal is also to highlight the manner in which the Government of India has gagged dissent in Kashmir by equating it to sedition. In order to do so, I will be referring to primary research methodology such as statues, judgements and government policies, and secondary research methods such as research papers which have laid down the empirical data with regards to the violations that have taken place and other topics related to human rights, freedom of press, censorship and sedition.
It is an indisputable fact that the freedom of speech and expression together with the freedom of press, is one of the most fundamental rights in most legal systems of the world, whether democratic or authoritarian. Most modern constitutions explicitly promise their citizens the right to freely express and publicise their political views and thus, refrain from imposing any government control over the news media content.[1] Grounded in the Enlightenment theories about the rationality of all human beings, the freedom of press ensures that every person is given an inalienable human right to self-determination. In relation to this right, not only are people allowed to freely and rationally discuss ideas and political events that occur in and around them, but they are also inherently entitled to ample and diversified information about the conditions around them, be in political, social or civil. A press that is free to present a wide array of contradictory claims and opinions, including views that challenge government authority and legitimacy, is therefore essential in any legal system, especially in a conflict zone.[2]
That said, it is also widely acknowledged that the right to free expression through an uncensored press is limited by other collective rights such as state security and governmental stability. At the same time, however, people realise that the media’s power to control political news carries with it the power to destroy popular sovereignty, because of which the power to place limits on free expression is misused.[3] According to Article 19(3) of the International Covenant on Civil and Political Rights (which India is a party to), States may restrict the right to freedom of expression and opinion for the protection of “public order”, however, such curbs must be necessary and proportionate and should not jeopardize the right itself.[4] The imposition of such limitations if unchecked results in fear in the minds of journalists, inhibiting their ability to freely carry out their work - which is exactly what can be seen happening in Kashmir.
The space in which Kashmiri journalists’ function is riddled with instances of harassment, intimidation and abuse.[5] Through the years, the army and militant outfits in Kashmir have threatened, abducted, tortured and killed a great number of media-workers.[6] However, the blatant violation of the Kashmiri people’s human rights by imposing disproportionate and unnecessary restrictions on the media is perhaps the gravest of violations as they are being committed by the State itself. The nature of these restrictions has not just thwarted the ability of the journalists to receive and impart information, opinions and ideas but have also prevented Kashmiris from access to genuine information, in complete violation of Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the Constitution of India, 1950.
The restrictions placed by the State on popular media on account of it being “seditious, anti national or subversive” has been taking ever since the 1950s[7] and has culminated in the complete repression of the Kashmiri voice. When incidents, predominantly related to human rights violations, occur, the authorities in Jammu and Kashmir (hereinafter, “J&K”) are quick to impose restrictions of the media by raiding the offices of prominent newspapers, seizing copies of the newspapers, detaining the staff and banning publication indefinitely. The Courts also justify these acts by providing vague reasons such as the newspaper contained material which tends to incite acts of violence and disturb public peace.[8] The Unlawful Activities Prevention Act, 1967 (UAPA)[9] has been used extensively against the Kashmiri journalists, such as Mr. Peerzada Ashiq, Mr. Gowhar Geelani and photojournalist Ms. Masrat Zehra, who, according to them, “indulge in unlawful activities”, “glorify terrorism in Kashmir”, and “publish fake news”.
Further, after the abrogation, a number or newspapers and periodicals were suspended, the newspapers that were allowed to function were given strict instructions to not report about the restrictions placed on the people and the protests taking place. Instead, the journalists were reduced to the government’s mouth-pieces who had to sell the highly problematic and illegal step taken by the State. The State has also begun arresting, detaining and investigating journalists under the Indian Penal Code, 1860 (hereinafter, “IPC”), which was previously not applicable in J&K. Journalists, were repeatedly questioned by the police, forced to reveal their sources, and restricted from travelling abroad.[10] Thus, under the garb of “Naya Kashmir”, the government was continuously hindering the media-workers basic right to live.
Another way in which the State controls the press is through advertisements. In the absence of local private industry in Kashmir, newspapers depend on government advertisements to generate revenue. The government then threaten to withdraw its advertisements if the publishing houses speak against them.[11] For example, the government stopped issuing advertisements to two major English dailies, Greater Kashmir and Kashmir Reader, as they criticised the government for the killing of Burhan Wani in 2016.[12]
In this background, the New Media Policy released by the Department of Information and Public Relations (DIPR) on the 2nd of June, 2020, designed specifically to curb dissent, serves as the last nail in the coffin of the freedom of press in Kashmir. By stating in its objectives that the New Media Policy aims to “foster a genuinely positive image of the Government”, the policy leaves no scope for any perspective that opposes or criticises the acts of the Government.[13] Further, since the Policy encompasses most, if not all, forms of media, such as print, electronic, radio, cable, etc., it ensures that the public opinion has been muzzled from all ends. The Policy calls for the “empanelment” of news outlets to ensure that they meet government standards and specifications.[14] Only those news outlets that have been approved can they be eligible for government advertisements. Further, once they receive such advertisements, they are required to the governments terms and conditions and must not indulge in any unethical, anti-social and anti-national activity. Moreover, any bureaucrat, employee of the government or clerk in the DIPR can term a journalist’s news as “fake, seditious or anti-national” and then initiate legal proceedings against them.[15]
The provisions of to conduct background checks of the journalists and publishers, and to determine what news is fake or anti-national are extremely wide and have been kept this way in order to facilitate the government’s goal to compulsorily unify the public opinion. The Policy in effect gives the State the legitimate authority to tell the people “what to think about”, and “how to think about” it. In order to do so, the Policy provides for a joint framework between the government and security agencies which is a perfect tactic to ensure effective intimidation. While such harassment is certainly not a new phenomenon, the Policy allows it be conducted in a systematic, structured and organised manner.
In addition to these measures, the State has continuously imposed communication blockades by suspending mobile and internet services in J&K. These measures have become infamous especially since the abrogation of Art. 370 as they seriously affect the people’s right to seek, receive and impart information. Such measures have been repeatedly held to be against international human rights laws.[16]
All these steps do not only go against the individual right to freedom of speech and expression as stated above, but also against the people’s right to be represented and the guarantee that the government will draw its authority from the will of the people. The increased trauma, stress and fear that the Kashmiri media faces has resulted in a very high level of self-censorship.[17]
The fear about harsh penalties for publishing sensitive stories is a highly significant curb on journalists’ reporting and has ultimately led to the resignation of many journalists. This violation of the Kashmiris’ freedom of speech and expression is thus mixed with a violation of cluster of human rights such as the right to life[18], the freedom from fear[19], the right against arbitrary arrest[20] and torture[21], or degrading treatment, and the right to practice any occupation.[22]
These policies have completely obliterated the difference between sedition and dissent. The law of sedition under Section 124A of the IPC makes every speech or expression that brings hatred or contempt or excites disaffection towards the Government, a criminal offence. The courts have held that a citizen has the right to say or write whatever he likes about the government by way of criticism as long as words have not incited people to violence or intended to create disorder or disturbance.[23] Despite this judgement, governments have continued to harass journalists, media practitioners, human rights activists and anyone who expresses dissent by filing sedition charges against them.[24] Thus, the sedition law itself in India has been greatly mis-used by political parties who wish to quell their opposition, however, in this case, the law is being extended in a very obvious manner to regulate the complete information circulation in J&K. Therefore, the limitation placed on the sedition law by the judiciary will not be applicable to the New Media Policy wherein expressions of dissent will automatically be considered “anti-national” instead of what they truly are, an exercise of democratic rights.
Without any freedom to carry out their duties, the local media can never fully paint a true picture of the happenings in J&K. Thus, the national media becomes the only source of information about Kashmir for the rest of the country and the world.[25] However, the national media’s reportage has been status-quoist and only includes that which fits the patriotic path that they tread upon. Issues of national interest/security, such as those related to defence, foreign policy, insurgency, and human rights are usually portrayed from a state security perspective, completely overlooking the stark reality of the Kashmiris struggles.[26] By only partially representing the situation to the rest of the country, the national media provides a veil to the violations being committed by the government, causes even more harm in the process.
A number of journalists in Kashmir have fought back despite being routinely harassed and are the ones who are narrating the Kashmiris story to the entire world. However, in order to fully destabilize the hegemonic representations that are being propagated by the mainstream media and the government, the freedom of press must be restored in Kashmir. While such a demand may be considered naïve in light of the abrogation of its special status and the ultimate goal of the government of India, it is vital that these policies be recognised for what they are, a complete and cruel disregard for the human rights of the Kashmiris. For, if these tactics are not brought to an end, it will not be long before this model is replicated in other parts of the country where the people express dissent.[27]
1 Doris A. Graber, Freedom of the Press: Theories and Realities, THE OXFORD HANDBOOK OF POLITICAL COMMUNICATION (August, 2017).
2Ibid.
3 Daniela Valeria Iancu, Freedom of the Press - A Component of Freedom of Expression, ACTA U. Danubius JUR. 57 (2010).
4 Human Rights Committee, Article 19, Freedoms of opinion and expression, General Comment 34 CCPR/C/GC/34 (12th September 2011).
5 Sahil Koul, Human Rights of Journalists Working in Kashmir: An In-depth Analysis, 7 Journal of Content, Community and Communication (June 4th, 2018).
6 Report on the Situation of Human Rights in Kashmir, Office of the United Nations High Commissioner for Human Rights, (June 14th, 2018).
7 MONA BHAN, HALEY DUSCHINSKI, CYNTHIA MAHMOOD AND ATHER ZI, RESISTING OCCUPATION IN KASHMIR (UNIVERSITY OF PENNSYLVANIA PRESS, 2018).
8Supra at 6.
9 Section 13, UAPA
10 News Behind the Barbed Wire: Kashmir’s Information Blockade, Network of Women in Media, India (September 4th, 2019).
11 Danish Nabi Gadda, ‘Partial Journalism’—A study of national media of India and Kashmir conflict, 10-1 Trends in Information Management 13-23 (2014).
12 Committee to Protect Journalists, Kashmir newspaper ordered to suspend printing (3rd October 2016). Available from https://cpj.org/2016/10/kashmir-newspaper-ordered-to-suspend-printing.php. 13 Media Policy-2020, Government of Jammu and Kashmir Information Department Civil Secretariat 2 (May 15th, 2020).
14 Id, at p. 8.
15 Id, at p. 8; Interview on “The Freedom of Press in Kashmir” with Mr. Gowhar Geelani (18th October, 2020).
16 Supra at 6.
17 Wasim Khalid, Media Propaganda and the Kashmir Dispute: A Case Study of the Kashmir Floods, Reuters Institute for the Study of Journalism, University of Oxford (August 2016).
18 Article 3, UDHR; Article 21, Constitution of India, 1950.
19 Preamble, UDHR.
20 Article 9, UDHR;
21 Article 5, UDHR.
22 Article 19(g), Constitution of India, 1950.
23 Kedar Nath Singh Vs State of Bihar, AIR 1962 SC 955.
24 R.K. Misra, Freedom of Speech and the Law of Sedition in India, 8 JILI (1966) 117. 25 Sahil Koul, Human Rights of Journalists Working in Kashmir: An In-depth Analysis, 7 Journal of Content, Community and Communication (June 4th, 2018).
26 Supra at 11.
27 News Behind the Barbed Wire: Kashmir’s Information Blockade, Network of Women in Media, India (September 4th, 2019).