Shakhawat Liton
A landmark verdict by the Indian Supreme Court scrapping a section of country's IT law that authorised police to arrest people for posting something "offensive" or "menacing" on social media and many of its previous judgments on the freedom of press offers some food for thought in the current context.
Widespread misuse of powers by police under section 66A of the IT Act 2000 led the Indian SC to strike the draconian provision down three and a half year ago, on grounds that such a law struck at the root of liberty and freedom of expression -- two cardinal pillars of democracy.
The court ruled that such arbitrary powers to arrest people for social media posts was unconstitutional.
According to Indian media reports, section 66A of the law had been widely abused by police over the years in various states to arrest innocent persons for posting critical comments about social and political issues and politicians on social networking sites.
The SC said the section in question upset the balance between right to free speech and the reasonable restrictions that may be imposed on this right.
In Bangladesh, there was almost a similar provision in the ICT Act -- section 57 -- which was widely abused to harass free thinkers and journalists triggering the demand for it to be scrapped.
In making the demand, journalists and rights activists in Bangladesh cited the landmark judgment by the Indian SC.
In the face of widespread criticism, the government has recently repealed the section but kept its contents in several other provisions in the newly-passed Digital Security Act (DSA), giving police even more arbitrary powers.
Take section 43 of the DSA: If a police official believes that an offence under the law has been or is being committed at a certain place, or there is a possibility of committing crimes or destroying evidence, the official can search the place or any person there.
The officer, upon putting in writing the reason for his/her belief, can also seize the computer, computer system, computer network, data and information or other objects that can help prove the crime while conducting a search.
Besides, police can arrest anyone present at the place without any warrant if he or she is suspected of committing or having committed a crime under this law.
The Sampadak Parishad (Editors' Council) is opposing at least nine sections of the DSA, including the section 43, and demanding proper amendments to those provisions. They fear these sections may seriously impede independent journalism and freedom of expression.
In a press conference on Saturday, the Council also referred to the Indian SC's verdict delivered in 2015.
Calling section 66A of the IT law “open-ended and unconstitutionally vague”, the Indian SC said nothing short of quashing the law “in its entirety” could suffice since the section “arbitrarily, excessively and disproportionately” invaded the right to free speech, right to dissent, right to know, and had a “chilling effect” on constitutional mandates, according to a report published by the Indian Express on March 25, 2015.
The judgment has widely been lauded as it expanded the contours of free speech on the internet.
The verdict not only reaffirmed the unquestionable importance of freedom of speech and expression in a democratic constitution, but also emphasised how a parallel discussion on freedom of the press has been at the core of evolution and expansion of this right.
The judgement discussed and borrowed from a body of judgments by the SC to underscore the indispensability of the free speech and freedom of the press.
It started with the 1950 judgment by the SC in the case of Romesh Thapar verses the state of Madras, where the court stated that freedom of speech lay at the foundation of all democratic organisations.
The second judgment that the SC drew from was Sakal Papers (P) Ltd verses Union of India, 1962 in which the court stressed the importance of the freedom of speech “under a democratic Constitution which envisages changes in the composition of legislatures and governments,” according to the Indian Express report.
The SC also cited the 1973 judgment on the “Bennett Coleman case” to assert that “freedom of speech and of the press is the Ark of the Covenant of Democracy” because public criticism is essential to the working of its institutions.
The individual rights of freedom of speech and expression of editors, directors and shareholders are all expressed through their newspapers, through which they speak, the court said.
To support the impact and content of freedom of speech, the SC referred to its previous judgment in 1985 in a case relating to Indian Express Newspapers (Bombay) Ltd.
The freedom of press, the apex court had ruled in that case, was the heart of social and political intercourse and its purpose was to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.
Protection of this right is essential as newspapers, being purveyors of news and views and having a bearing on public administration, very often carry material which would not be palatable to governments and other authorities, it noted.
There are many more judgements pronounced by the Indian SC and the courts in many other countries upholding the freedom of the press.
Now, take some more examples.
The Madras SC in Nakkheeragopal Editor versus State Rep case verdict in September 2001 said if freedom of speech and expression is the foundation on which the edifice of democracy is built up, freedom of press is a corner stone.
"The freedom of press, therefore, is the heart of the social and political intercourse of democratic institution. Hence, it is the primary duty of the Courts to uphold the freedom of the press and invalidate all the laws and the administrative or executive actions which infringes the freedom of press, as cautioned by the Apex Court in Indian Express Newspapers (Bombay) P Ltd v. Union of India," it asserted.
A few months earlier in the same year, the Delhi High Court in Shri Surya Khatri versus Madhu Trehan and others case verdict said that freedom of the press has always been regarded as an essential prerequisite of a democratic form of government. It has been regarded as a necessity for mental health and the well being of the society. It is also considered necessary for the full development of the personality of an individual.
"The freedom of press is regarded as the 'mother of all other liberties' in a democratic society," said the court in 2001 verdict.
At a programme in July this year, the immediate past chief justice of India Dipak Misra endorsed that view.
Misra, who retired as CJ just this month, added that the media “should have its own guidelines for self-regulations,” according to a NDTV reports on July 25 this year.
“Freedom of press in a democratic society is the mother of all liberties. There is no doubt it is one of the most cherished and valuable rights guaranteed under the constitution. It includes the right to know and the right to inform,” Misra told the programme organised by the International Law Association.
In the Indian Express case verdict in 1984, the SC said: "As long as this Court sits newspapermen need not to have the fear of their freedom being curtailed by unconstitutional means."
In the verdict the apex court referred to significant remarks made by Pandit Jawaharlal Nehru, the first prime minister of independent India.
In his historic resolution containing the aims and objectives of the Constitution to be enacted by the Constituent Assembly said that the Constitution should guarantee and secure to all the people of India among others freedom of thought and expression.
He also stated elsewhere that "I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press."
Latest in in January this year, the Indian top court in another landmark verdict made endeavour to protect rights of the media as it recently announced that freedom of speech and expression of the media must be allowed to the fullest and the press may not be hauled up for defamation for “some errors” in its reporting.
In a defamation case, the court clarified the phrase “some errors" by saying: “There could be some error or enthusiasm in reporting an alleged scam. But, we must allow freedom of speech and expression to the press at the fullest. There may be some wrong reporting. For that they need not be hauled up for defamation.”
Now it all depends on us what path we should choose to make efforts for building a democratic society with or without the freedom of press.
- Courtesy: The Daily Star/ Oct 15, 2018
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