In a recent public interest litigation (Alakh Alok Srivastava vs Union of India), the Centre sought a direction from the Supreme Court that no electronic / print media / web portal or social media shall print / publish or telecast anything without first ascertaining the true factual position from the separate mechanism provided by the central government.

This direction has been sought in a status report submitted by the state detailing the steps it has taken thus far to fight the coronavirus pandemic. Such a direction has been sought on the basis of the claim that, Any deliberate or unintended fake or inaccurate reporting either in electronic, print or social media and, particularly, in web portals has a serious and inevitable potential of causing panic in large sections of the society. Considering the very nature of this infectious disease which the world is struggling with, any panic reaction by any section of the society based on such reporting would not only be harmful for such section but harmful for the entire nation.

A direction of this nature, to be constitutionally protected, must be reasonable and covered within the ambit of Article 19(2) of the constitution. In order for government action against the media to be protected under Article 19(2), there has to be a proximate relationship between the speech/expression that is sought to be curtailed and the parameters set out in Article 19(2). This relationship must not be remote, fanciful or far-fetched and should be based on material evidence that demonstrably proves the states claim.

Also read: Coronavirus v. Free Speech: Modi Government Opens New Battlefront in Supreme Court

It has been amply documented in various reports that adequate steps were not immediately taken to provide migrant workers with basic and humane living conditions after the lockdown was announced. In this vacuum, migrant workers and their families were left with no alternative but to leave for their villages. The images of migrant workers walking helplessly on highways, putting their lives and that of their young children at peril, is testament to the failure of the government in effectively protecting these workers.

At present, there are no credible studies or reports that argue, let alone establish, the migration of workers was motivated by anything other than the announcement of the lockdown measures. Even the status report filed by the Centre does not cite any data that could back the claim that the migration was due to the dissemination of fake news. This suggests that the states claim evidently made orally by the solicitor general and noted in the courts order that workers migrated because of fake news is at best based on conjecture or surmise, and at worst is a blatant attempt to deflect responsibility and accountability.

We live in an age where the collection, dissemination and consumption of information has defined the realisation of and access to human rights. The cornerstone of efficient and democratic policy making is to incorporate public debate and criticism within its fold. To see public debate and the critique of state action as adversarial is to misconceive its indispensable role in democratic nation building.

The Supreme Court in a catena of judgments, ever since the landmark Sakal Papers case in 1962, has consistently held that the right to circulate ones views is an integral part of the right to freedom of speech and expression. The Supreme Court also ruled that the freedom of the press cannot be curtailed in the interest of the general public. Any restriction to the freedom of press must thus fall in line with the stipulations enumerated in Article 19(2) of the constitution:

Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the 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 an offence.

The freedoms enshrined in Article 19 also include the peoples right to know. During a public health crisis, like the one faced by the world today, the value of the right to be informed is undeniable. Given the dynamic nature of the crisis, and the evolving responses to it coming from various scientific and medical experts, there can be no singular source of information that encompasses all strands of research and expert opinion.

The WHO, in its operational guidelines, highlights the vital role played by media houses in disseminating information, which is arguably one of the most important steps towards fighting a disease of mammoth proportions. It is pertinent to acknowledge the ability of the free media to unearth vital information which may still be unknown even to the state. This makes the media not only a source of constant critique but also an independent ally for better governance.

The Centres demand, if eventually conceded, will effectively act as a gag on the free flow and circulation of information which may not always be palatable to the government. Such a step will inevitably also have a chilling effect on robust and uncompromised journalism.

The law with regard to prior restraint of media is well settled and the Supreme Court has consistently held that it would not be in consonance with the constitutional scheme to prevent the publication of news. As recently as 2017, in a petition filed by Common Cause, a bench comprising the then Chief Justice J.S. Khehar and Justice D.Y. Chandrachud noted that prior restraint on the publication of news is not the job of the court or administrative authorities, and that all grievances should be dealt with in accordance with the law of the land only after its publication.

Also read: UP Police FIR Against The Wire an Attack on Freedom of the Press

The court had said, We cannot ask them (Centre) to monitor the content of channels. How can we do that? You can approach us or the authority concerned after telecast or airing of objectionable contents only. If something happens and you find them obnoxious, then we will certainly deal with them. Generally speaking, we cannot interfere with it and do content regulation.

While quashing an order which had restrained Cobrapost from publishing an expos on media houses, Justice S.R. Bhat of the Delhi high court had also in 2018 noted that despite the challenges posed by the new age media, especially the electronic media and internet posts, it cannot per se dilute the valuable right of free speech, which the court stated is the lifeblood of democracy.

The state has time and again utilised the rhetoric and bogey of fake news, just as it does claims of national security and/or national interest, to justify the whittling down of the right to freedom of speech and expression.

In Jammu and Kashmir, the fear of fake news was used to justify severe restrictions on free speech and media rights by curtailing access to the internet, after the Centre read down Article 370. The same fear is now being cited to seek pre-publication screening of media reports. In the race between civil liberties and state control, ground is usually lost bit by bit, and one has to be extremely vigilant to keep pace with the increasing dilution of civil liberties.

Devika Tulsiani is a student of law in New Delhi. Soutik Banerjee is a Delhi-based advocate.

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