J&K HC Backs Free Speech, But It May Not Free Kashmir's Media

10 Oct 2020 7 min read  Share

“Reporting of events which a journalist has bona fide reason to believe to be true, can never be an offence.” In other words, journalism is not a crime. As the J&K High Court backs free speech, providing a sliver of hope to Kashmir’s increasingly persecuted media, the Supreme Court says the opposite.

(left to right) Kashmiri journalists Fahad Shah, Kamran Yousuf and Auqib Javeed.

Srinagar: “Reporting of events which a journalist has bona fide reason to believe to be true, can never be an offence. Taking a contrary view would be violative of the right of freedom of speech and expression, which includes within its ambit freedom of the press, is subject only to reasonable restriction imposed by law for specific purpose.”

These lines in a 7 October judgement delivered by Justice Sanjay Dhar of the Jammu and Kashmir (J&K) High Court delivered discernible hope to Kashmir’s embattled and persecuted media—except that a day later the Chief Justice of the Supreme Court made this observation: “The right to freedom of speech and expression is the most abused right in recent times.”

While the J&K High Court judgement concerns the misuse of a law, some journalists pointed out that much of recently reported intimidation has occurred beyond the pale of the law, including an unofficial detention at gunpoint and an assault after being called in for “a chat”, as it happened with an Article 14 writer in September.

The contexts of both judgements were different, and they come at a time of unchecked unofficial and official intimidation and harassment of the media in Kashmir. This bullying is provided cover by an official media policy that, as Article 14 reported in June, makes vague, undefined threats against reportage that is against “India’s integrity” and “public decency”.

The larger national backdrop is India’s position at 142 of 180 countries—behind Myanmar, Afghanistan and South Sudan—in the 2020 global Press Freedom Index, which the advocacy Reporters Without Borders said was “heavily affected by the situation in Kashmir”.

As attacks against the media grew in Kashmir, pressures increased elsewhere. As many as 55 journalists “faced arrest, registration of FIRs, summons or show cause notices, physical assaults, alleged destruction of properties and threats” for reporting on Covid-19 or “exercising freedom of opinion and expression during the national lockdown between March 25 and May 31, 2020”, said a June report by the Delhi-based Rights and Risk Analysis Group, a think tank.

The highest number of attacks on journalists during these two-and-a-half months were reported from Uttar Pradesh (11), Jammu and Kashmir (6) and Himachal Pradesh (5).

The J&K High Court judgement may not change much for India’s media as a whole, but it could provide some relief to local reporters in Kashmir.

‘Judgement Should Be An Eye-Opener’

Over the past year there has been a clear pattern of coercion against the media in India’s newest union territory and the judgement restating the basic description of a reporter’s job—at variance from the way the state has defined journalism in recent years—provides some relief to Kashmiri media.

The 7 October order said the freedom of the press, “cannot be put in peril” on the basis of “grounds which are unknown to law”. Justice Dhar said: “The limitations on freedom of the press cannot extend to registration of a criminal case against a reporter, who in discharge of his duties and on the basis of information gathered by him, makes a report about certain incidents which he thought in public interest should be published.”

That is particularly relevant to Kashmir, where the abrogation of Article 370—the constitutional provision that led to the accession of J&K to India—on 5 August 2019 led to increased harassment of journalists: from booking them under India’s anti-terror law, the Unlawful Activities(Prevention) Act, 1967, for social-media posts or for sharing professional work to harassing and intimidating them for stories perceived to be against State interests.

Justice Dhar’s 15-page judgement quashed an FIR filed on 3 April 2018 against Saleem Pandit, a Srinagar-based reporter of the Times of India, who filed two stories, one of which was this: “Stone pelters in J&K now target tourists, four women injured.”

“This judgment should be an eye opener for the government and the J&K Police, who have a habit of registering FIRs (first information reports) against journalists at the drop of a hat,” said Bashaarat Masood, a journalist at the Indian Express. “A journalist always does a story in good faith and after proper checks and cross checks. It is important that the police understand the import of this judgment, stop curbing freedom of expression and stop harassing journalists in the Valley."

More guarded was the reaction from Hilal Mir, a former editor at the Hindustan Times and a correspondent at the Anadolu News Agency, a state-run Turkish news wire. “It remains to be seen whether this judgement will prevent persecution of journalists in Kashmir.”

Most FIRs against journalists in Kashmir are vague and usually left open, creating the potential for future action against them, an issue that Justice Dhar addressed. “The contents of the FIR, which is based upon the complaint filed by some association of travel agents, are absolutely vague and devoid of any particulars in this regard.”

The police charged Pandit with “publishing statements conducive to public mischief”, which Justice Dhar said did not apply if the person publishing it believed it as being true and published it in good faith. Justice Dhar also pointed out that the complainant, local tourist operatorswho originally said the report was false and had created “an atmosphere of threat”had come to an agreement with Pandit and the FIR was akin to “flogging a dead horse”.

“This judgement is a timely message to the police that a journalist can never be booked merely because of the perception that his reports were likely to deter tourists from visiting Kashmir,” said Manoj Mitta, journalist, author and founding director of the Foundation for Media Professionals.

“It is immaterial that said report may have adversely affected the business of some person(s) as long as the reporter had reasonable grounds to believe that his report is true,” said Justice Dhar. “The police in such type of cases (sic) cannot be allowed to hound the journalists by misusing its powers.”

Nuances And Limitations Of the Law

Justice Dhar’s judgement went into the nuances of the FIR, discussing the section of the law that the police used while ignoring its exceptions, a common tactic often meant to keep cases alive without legal backing.

Mitta said the High Court quashed the FIR due to the absence of two necessary ingredients of the alleged offence: one, that the stories were published with an intention to cause fear or alarm; and two, someone had been induced by the publication to commit an offence against the state.

“In the backdrop of the hounding of journalists in Kashmir, the judgement comes as a boost to free speech, for it held that the journalist had acted in a bonafide manner even if it was debatable whether tourists had been targeted by the stone-pelters or they had merely suffered collateral damage,” said Mitta.

The section of law used against the Times of India’s Pandit, 505 of the former state’s Ranbir Penal Code, promulgated by the monarch of the former kingdom, is largely the same as section section 505 of the Indian Penal Code, dealing with “statements conducing to public mischief”. On 20 April, it was also used against Peerzada Ashiq of The Hindu for a story that, according to the police was incorrect.

On 22 April, journalist Gowhar Geelani was also booked under the UAPA for “glorifying terrorism”.

While these cases and the 7 October judgement relates to a case registered by the police, it may not make a difference, as we said earlier, to unofficial intimidation by police.

On 5 October, two Kashmiri journalists returning from a reporting trip to Punjab were detained at gunpoint by police, questioned for 4.5 hours and warned about previous reportage.

Fahad Shah, editor-in-chief of the independent website, The Kashmir Walla, and his colleague Burhan Bhat wrote about how they were picked out at a security checkpoint on the way home to Srinagar from Jammu and surrounded by J&K police “commandos” with assault rifles.

Shah said Justice Dhar’s judgement was “significant in terms of the fact that the court categorically said that journalism is not an offence”. Over the last year, he said, journalists in Kashmir had endured multiple summons and illegal detentions, including his own.

“This has been setting an unfortunate precedent that any police official is now summoning reporters,” said Shah. “The court's judgement should be taken in this context as well, that journalists don’t run propaganda but base their reports on facts, and reporting facts is not an offence.”

On 18 September, journalist Auqib Javeed was slapped and threatened by the police after he wrote a story for Article 14. Three days before this incident on 15 September, photojournalist Kamran Yousuf was beaten by police for taking photos of a firefight in the southern district of Pulwama.

Other incidents of harassment have used or misused the law.

On 20 April, photojournalist Masrat Zahra was booked under the UAPA for sharing her professional photos on social media. Shortly after, she won a top photojournalism award for those photos.

The overall impact of the harassment is that journalists tend to censor themselves or take extraordinary precautions.

A journalist who works for a national newspaper explained how he recorded a conversation he had with a police officer, who he had called for a routine quote, and stored the recording on his phone and a friend’s.

“I did this because tomorrow if I am called in for questioning–as is the norm these days–and the memory on my phone is erased, I should have a back up to support my arguments,” said the journalist, speaking on condition of anonymity. “The police never called me, but there is a fear now embedded in our psyche.”

(Shafaq Shah is a journalist based in Srinagar.)