The Creeping Erosion of Free Expression

The decision to put on hold the ban on NDTV India is a threat only half withdrawn because of the nationwide protests. The Modi government continues to create a toxic discourse around national security with the idea of nibbling at various freedoms guaranteed under the constitution.

Make no mistake, the government’s decision to put on hold the one-day ban on NDTV India is just a tactical withdrawal on the part of the Modi-led government. The DNA of this dispensation is not changing anytime soon. Such attacks on the media will persist in the name of preserving “nationalism” and “national security”. The last time media organisations buried their differences and came out in protest was when BJP goons in lawyers’ clothing tried to thrash journalists who had gathered to cover the bail application proceedings of Kanhaiya Kumar earlier this year. The right to freedom of expression was an issue there too. At that time, the media had got a taste of the cynical manner in which the Centre used the Delhi Police, which let the party stormtroopers do their job despite the Supreme Court’s directive to maintain order outside the courts.

This time around, the media rallied behind NDTV after the ban order and wholeheartedly condemned the wanton attack on press freedom guaranteed under the constitution. The government saw the growing protests across India – not just in Lutyens Delhi, as some bhakts would like to believe – and decided to soften a bit for now. The Editors’ Guild of India, Indian Women’s Press Corp, Press Club of India and the Federation of Press Clubs across 14 states all came out strongly in protest against the ban.

Meanwhile, NDTV has filed a petition in the Supreme Court and sought to get the ban order declared unconstitutional as it violates the right to free expression under Article 19(1) (a) of the constitution. The power to ban media channels under rule 6(1)(p) of the Programme Code (prescribed under the Cable Television Network Rules 1994), which deals with the coverage of terror attacks, needs to be examined in detail by the Supreme Court. How could the mere mention of the existence of a fuel depot, school and private quarters of soldiers inside the Pathankot base – all information in public domain – be construed as compromising national security? Is there an elaborate security protocol established by the government and conveyed formally to media organisations for the coverage of incidents such as the Pathankot attack? These are questions the Supreme Court will surely examine. The court will also examine the bigger question of whether the scope of “reasonable restrictions” to freedom of speech is being illegally expanded by the NDA government in the name of “national security”. These critical questions are by no means resolved.

Also read: A Ban That Politicians Should Have No Right to Impose

The I&B ministry has decided only to put on hold its ban on NDTV India. This is a threat only half withdrawn under pressure because of the nationwide protests. In the midst of all this, BJP president Amit Shah has made aggressive statements along the lines of ‘you can criticise the government but criticising the nation cannot be tolerated’. This betrays constitutional illiteracy.

The larger point is this government – with Prime Minister Narendra Modi, national security advisor Ajit Doval and Shah as its key thinkers – is creating a toxic discourse around national security with the idea of nibbling at various freedoms guaranteed under the constitution. For instance, the media was being intimidated when it was reporting what appeared to be a cold-blooded murder of the SIMI activists who had escaped from jail in Bhopal. The media was endangering “national security” by questioning the manner of their killing. Never mind that there is a Supreme Court judgement from two years ago in which Justices R.M.Lodha and Rohinton Nariman clearly specified procedures to be followed by the police in the event of an encounter. According to the judgement, immediately after an encounter, a superior officer of the concerned police station must investigate the encounter by filing a comprehensive FIR and by collecting all immediate evidence on the spot, including the weapons found on the accused,which are to be sent for forensics to establish the nature of armed resistance. None of this seems to have been followed in the Bhopal encounter and the Madhya Pradesh government has even talked of rewarding the police personnel involved.

Perhaps the government may want to declare the Supreme Court order as causing a risk to national security, along with the media coverage of the judgement. This is the kind of madness we are witnessing these days and I&B minister Venkaiah Naidu has the gall to suggest that his government continues to respect media freedom.

Forget about the media, the NDA has introduced a toxic element in the fresh memorandum of procedures being worked out for the appointment of judges in the higher judiciary. It says the government will have a veto on the appointment of a judge based on any “national security” consideration that may arise. In plain terms, does this mean any judge who has a past record of interpreting the freedom of speech and other constitutional rights in the widest possible terms may not be seen as conducive to the protection of “national security”? Perhaps this what L.K. Advani meant two years ago when he said India could face an emergency-like situation. What we are seeing is the gradual erosion of free expression through various subtle, and not so subtle, techniques.

Contrary to what Naidu claims to be his government’s record in fostering freedom of speech, one would draw attention to a global report on internet shutdowns brought out by Brookings Institution, a US-based think tank. It says the largest number of politically-driven internet shutdowns during the July 2015-June 2016 period have happened in India and Iraq. Of the total 81 major internet shutdowns, India and Iraq have done it 22 times each. Most other countries are in the low single digits, with Pakistan having shut down the internet only six times!

One reason why India has such a bad record of internet shutdowns is because the Modi government decided to come down on the Patidar agitation led by Hardik Patel like a ton of bricks. There was no “national security” risk involved in Gujarat. This was a brute and unjust quelling of political dissent. In fact, if anything the Modi regime did was truly emergency like, it was the prolonged incarceration of Patel and other leaders of the Patidar agitation. The entire Gujarat territory was without internet and other social media services for certain periods. The Gujarat experiment seems to be getting replicated in states like Chattisgarh and Madhya Pradesh. Is this freedom of speech, Mr Naidu?