Media raids and breaking the silence on press freedom

The Income Tax Department carried out a “survey action” on the offices of the British Broadcasting Corporation (BBC) in New Delhi and Mumbai

 INSIGHTS ON THE ISSUE

Context

Press Freedom in India:

• Romesh Thappar v. State of Madras, 1950: The Supreme Court observed that freedom of the press lay at the foundation of all democratic organizations.
• Fundamental Right Under Article 19: The Indian Constitution guarantees freedom of speech and expression under Article 19, which deals with ‘Protection of certain rights regarding freedom of speech, etc.
• Implicit Right: Freedom of the press is not expressly protected by the Indian legal system but it is impliedly protected under article 19(1) (a) of the constitution.

Freedom of the press is also not absolute:

• A law could impose only those restrictions on the exercise of this right, it faces certain restrictions under article 19(2), which is as follows:
  • Sovereignty and integrity of India,
  • Security of the State,
  • Friendly relations with foreign States,
  • Public order, decency or morality or in
  • Contempt of court,
  • Defamation
  • Incitement to an offense.

What was the action?

• A press release was issued by the Central Board of Direct Taxes (CBDT) citing an alleged evasion of taxes on remittances and discrepancies in BBC’s transfer pricing mechanism.

Response from media organizations:

• Press Club of India have described the raids as “deeply unfortunate”
• The Editors Guild termed them as “intimidation”.

Events before raids:

• Tax scrutiny is a natural outcome of the BBC’s two-part documentary series, “India: The Modi Question”, which the BBC released on January 17, 2023.
• Emergency secret order issued by the Ministry of Electronics and Information Technology, the documentary’s web links were blocked on January 20, 2023.

What are issues associated with such sections?

• Survey actions” is an attempt to instill fear and self-censorship that begins with knocking on the doors of the offices of journalists.
• The actions have become sinister as they now involve the seizure of devices.
• Journalists, as in the case of the BBC, are treated as potential criminals.
• Journalists’ computers were searched, their phones were intercepted and information was sought from them about their working methods”.
• Even if the case of the CBDT is perceived as legitimate, it would at its very best be limited to an accounting and financial investigation.
• Without any clear and compelling reasons to extend a digital dragnet on working journalists(fishing expedition).
• Wider trend of the extraction of sensitive data from journalists by using the tax and police departments across India.

Instances of device searches that impact press freedom:

• The Quint
• Proprietors and senior editors of publications such Alt News, Bharat Samachar, Dainik Bhaskar, NewsClick, The Wire
• The Independent and Public-Spirited Media Foundation (IPMSF)
• Journalists such as Fahad Shah, Rupesh Kumar Singh and Siddique Kappan.

Half truth in the executive response:

• The Ministry of Home Affairs: “police” and, “law and order”, are topics within the competence of State governments, it cannot “centrally maintain” device seizures of journalists.

Why is this  half truth?

• Crime in India report queries data from State governments and can easily be extended to include data on device seizures of journalists.
• Many of the searches and seizures have been performed by central agencies such as the Income-Tax Department and such a record can be maintained and published by the Ministry of Finance.
• Institutional evasion only increases suspicion about the bona fides of prosecutions
  • It represents a lack of intent for any studied consideration by the executive, particularly the Union government.

Legal stand:

• Protection of freedom of speech, especially its most critical voices, is a democratic duty limited to the courts.
• Lawyer Abhinav Sekhri:“rooted in the avowed colonial mentality of maximizing state interests while depriving any semblance of protection to the accused persons”.
• Code of Criminal Procedure, 1973 — the procedural law to govern criminal cases in India.
  • Specific legal provisions provide for discretion to police officers apart from a spirit that resides within our criminal justice system
  • Criminal courts rarely check the police for their investigatory practices and evidence collection.
• CBDT’s “survey action(tax experts such as Deepak Joshi):Without any fear of sanction, or checks on their powers, investigating officers in a “survey action” will freely conduct a more invasive, “search and seizure”.

Way Forward

• Doctrines for press freedom: The first cluster requires the application of the fundamental right to privacy drawn from the Supreme Court’s judgment in K.S. Puttaswamy vs Union of India (2017)
  • Its application to the criminal justice system is awaited in cases of electronic evidence.
• K. Basu guidelines as relevant for a digital India may also be a way out.
• Stricter procedural safeguards are required today due to digitisation.
  • The Supreme Court of the United States noted in Riley vs State of California. It said: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”
• The recent trend is an adaptation of an old template where a muscular executive sidesteps a direct response to a critical article and in bad faith directs legal scrutiny on the publication itself.
• Jurist Rajeev Dhawan(1986): The partial attention paid to the operational and institutional needs of the press seems to have died out”.
  • There has indeed been a long and tragic silence on press freedom over decades.
• The Supreme Court needs to revive and apply the doctrine of “effect and consequence” to consider a broader canvas of executive actions that will shape the practices of our criminal courts.
• In the BBC case: A relevant fact for a court to determine is not limited to allegations of tax evasion but whether the scrutiny is prompted by a documentary that is critical of the Prime Minister.

QUESTION FOR PRACTICE

India and the USA are the two large democracies. Examine the basic tenets on which the two political systems are based.(UPSC 2018) (200 WORDS, 10 MARKS)

Source: The Hindu

• Prelims: democracy, FRs, freedom of speech, G7 etc
• Mains GS Paper I and II: Role of civil society in a democracy etc