"The Supreme Court Is in the Thrall of the Government" Views of CHANDAR UDAY SINGH :Sanjay Patil

Sanjay Patil : Nagpur Press Media :  28/MAY/2020 : By Chandar Uday Singh : A month ago, on April 27, a bench of the Supreme Court testily informed activist-lawyer Prashant Bhushan that “this institution is not a hostage to the government”.

And undoubtedly right they were. The Supreme Court of India has for almost four decades been recognised globally as extraordinarily influential and powerful, its verdicts keenly read and commented upon by legal scholars and even constitutional courts throughout the free world; the sheer expanse of its reach has amazed commentators; and it is often referred to as “the most powerful court in the world”.

By the mid-1980s, bouncing back from its ignominious capitulation to the dictates of an all-powerful executive during the emergency years (1975-1977), the Supreme Court made a name for itself as an activist court. This was a court that converted letters and post-cards from under-trial detenus and prisoners into suo motu public interest petitions (PILs), forcing a brute police force to treat prisoners humanely; that weighed in for, and freed, bonded workers in stone quarries near Delhi; that ensured application of labour laws for unprotected migrant workers building the stadia and facilities for the 1982 Asian Games; that acted against torture in police custody; the list goes on and on.

In 1985 the legal scholar Professor Upendra Baxi wrote that “the Supreme Court of  India is at long last becoming, after thirty two years of the Republic, the Supreme Court for Indians”. A few years later, on comparing our top court with those of the US, UK, and elsewhere, Baxi recorded as his opinion that ours was clearly the most powerful. He was echoed a decade later by the Director of the Institute of Advanced Legal Studies, S.P. Sathe, whose book “Judicial Activism in India” (2001) contained the unambiguous statement that “The Supreme Court of India has become the most powerful apex court in the world”.

Chief Justice A.M. Ahmadi, himself one of the activist judges who helped advance the Supreme Court’s assertiveness in matters of governance, acknowledged in a lecture delivered in December 1995 that the moniker of “most powerful court in the world” invited the criticism that the court was transgressing into the domain of the executive and the legislature, and thereby violating the doctrine of separation of powers.

But he argued that the critics were missing the difference between traditional notions of private law, and the imperatives of public law driven by the court’s role as an institutional watch-dog of people’s fundamental rights, and it’s standing as the most assertive organ that the nation possesses. “When derelictions of constitutional obligations and gross violations of human rights are brought to the notice of the Supreme Court”, said CJI Ahmadi, “It cannot be expected to split hairs in an effort to maintain the ‘delicate balance’ of power between the wings of Government; it must act and act in a positive manner that will provide relief, which is real and not illusory, to the parties who invoke their fundamental right in invoking its jurisdiction”.

Five years later in 2000, which happened to be the fiftieth year of the republic, Oliver Mendelsohn, legal scholar emeritus at Australia’s La Trobe University, authored a paper titled “The Supreme Court As The Most Trusted Public Institution in India”.   While the title says it all, the author wraps up his 17-page analysis with the words:  “The Supreme Court is now one of the central strengths of Indian public life”.

Closer to the present, the New York Times in September 2018 carried a detailed report headlined: “Hundreds of Cases a Day and a Flair for Drama:  India’s Crusading Supreme Court”. In their 2019 book The Supreme Court of India: An Empirical Overview,  William H.J. Hubbard of the University of Chicago, Sital Kalantry of Cornell University, and Aparna Chandra of the National Law University wrote that “The Supreme Court of India holds a unique status for several reasons”.

After enumerating those reasons, the authors conclude:

“These features distinguish it from several other powerful Supreme Courts, such as the Supreme Court of the United States. And the Supreme Court of India remains a highly respected institution by the people of India (and beyond), giving it a legitimacy when it exercises its broad powers”.

Coming full circle then, there can be no doubt whatsoever that our top court is not hostage to the government. Equally, though, there is little doubt that the Supreme Court has in large measure chosen to play the role of a mute spectator for over two months now, standing by and watching helplessly while the poorest and most vulnerable citizens of India have been put through horrendous privations and suffering.

The bare and unsubstantiated word of the government’s law officers, often not even supported by an affidavit, has been deemed sufficient by the court to hold that millions of desperate (and destitute) citizens are being looked after, that there is no migrant problem at all, that there is nothing the court can do to alleviate further suffering, and that in view of the bland oral assurances of law officers, “no purpose will be served in keeping the Writ Petition pending, hence Petition is closed”.

A brief flashback is necessary. After a nationwide lockdown was announced with under four hours notice on March 24, lakhs of stranded workers tried to move out of large cities to somehow return to their villages. The chief minister of UP, who had provided 37 luxury buses to transport 1800 Gujarati pilgrims from Haridwar to Ahmedabad at the behest of the Union home minister on that very day, tweeted on March 27 that his government had arranged for 1000 buses to transport UP workers stranded in Delhi and Gurugram to their home villages from Ghaziabad.

Thousands of stranded workers gathered at Anand Vihar and Kausambi on March 28, where they were told that the Delhi government would provide buses to drop them where the UP government’s 1000 buses were waiting. Similar scenarios were playing out in other states where millions of workers were stranded.

At this juncture the Union Ministry of Home Affairs (MHA) had a change of heart, and prohibited all inter-State and inter-District movement of migrant workers, directing that they be brought back from wherever they might be, and detained in the nearest quarantine facilities “for a minimum period of 14 days as per standard health protocol”. The March 29 orders said nothing about what would happen to the stranded workers or their families after 14 days, but threatened that the district magistrate and senior police functionaries would be held personally liable for the implementation of these draconian orders.

When a petition filed by a lawyer, Alakh Alokh Srivastav, and another by the former bureaucrat Harsh Mander and social activist Anjali Bhardwaj challenging the inhumane treatment of stranded workers came up on April 3, the Supreme Court asked the solicitor general to respond by April 7. On that day the court directed that a “Status Report” filed by the government, though seen by the court, had not been furnished to the petitioners, and directed that it be given to them.

On April 13, though the petitioners had the status report, the court could not find its copy, so the matter was adjourned to April 20. In the meanwhile, on April 15, a group called Stranded Workers Action Network (SWAN) published a detailed survey report that showed that of the 11,159 workers surveyed, 72% said their rations would be exhausted in two days, and large numbers in Maharashtra and Karnataka said they had food only for one day. Many of the stranded workers said that they were eating only one meal a day, and 96% of those surveyed across the states said that they had not received any rations from the government.

This report, which was reported in daily newspapers as well as on online news platforms, clearly belied the vague assurances contained in the government’s “Status Report”.  Yet, when the Harsh Mander-Anjali Bhardwaj petition came up for hearing on April 21, the court disposed of it after merely calling upon the government to look into the materials placed on record by the petitioners, and to “take such steps as it finds fit to resolve the issues raised in the Petition”.

A petition filed by the former director of IIM-Ahmedabad, Jagdeep S. Chhokar, seeking safe passage home for the millions of workers stranded around the country, met a similar fate. By the time this petition was heard on May 5, it had been widely reported that tens of thousands of young citizens stranded in the Competitive Examination Coaching Academies of Kota, had been provided free bus transportation by their home States and repatriated between April 17 and 25, without following any pre-testing or other protocols, even though Kota was then a COVID-19 hotspot.

Yet, when special trains were finally, and grudgingly, provided for stranded workers, numerous near-impossible conditions were imposed on them, and the railways charged them fares which were Rs 50/- per ticket higher than the standard sleeper fares.   Though an attempt was made by the government to gloss over this gouging of destitute migrant workers by claiming that 85% of the fare was subsidised by the central government, most national newspapers on May 5 carried front-page articles explaining that this was accounting skullduggery and sleight-of-hand, and that the stranded workers were in fact required to pay the full normal sleeper fare, and in addition a surcharge of Rs. 50 to Rs 60/- per ticket.

Once again, in spite of the glaring double-speak by the government, the court at its hearing on May 5 proceeded to “close” Jagdeep Chhokar’s petition after accepting the government’s orally offered platitude that “all necessary steps were being taken care of by the Centre and States”.

One could endlessly multiply instances such as the above, but that would serve no purpose. Suffice to state that commentators ranging from constitutional scholars to retired judges, from eminent jurists to practicing lawyers, from court reporters to seasoned political columnists, have during the past two months highlighted the near-abdication of function by our highest court.

The all-too-public and intensely-documented suffering of millions of stranded workers was repeatedly brushed aside; when well-known social reformers and human rights activists like Swami Agnivesh, Aruna Roy, Nikhil Dey, Harsh Mander, Anjali Bhardwaj, Nandini Sunder and Jagdeep Chhokar filed petitions based on considerable documentation as well as their own knowledge of the unfolding human tragedy, the court told them that the solicitor general would look into the monumental failures of planning and human rights abuses indulged in by his own client, the government; when lesser mortals like practising advocates approached the court as petitioners on the basis of news reports, they were given marching orders with taunts like “you have no work during the lockdown so you are filing petitions”.

Habeas corpus petitions challenging repetitive detentions were put on the back burner; the plight of Kashmiri students denied their right to education, and of lakhs of citizens denied online access to medical information and care because of the forced lack of 4G connectivity, though it evoked an eloquent judgment on human rights from the court, resulted in nothing more than the court asking the very government officials who had imposed these appalling curbs, to consider whether they might decide to relax the restrictions at some unspecified time in the future. In sum, the Supreme Court evolved what one constitutional scholar dubbed a “hope and trust jurisprudence”.

Instead of framing questions and calling upon the government to answer them on affidavit, as has been the invariable practice in PILs over the past 40 years, the Supreme Court in the times of COVID-19 has displayed a deep and abiding faith in the oral word of the government’s law officers. Sadly, this faith was not eroded even when week after week threw up an avalanche of facts and figures and photographs and video clips which laid bare the oral assurances and platitudes.

It was only on May 26, a full month after that exasperated retort to Prashant Bhushan, that the Supreme Court became alive to the untold suffering visited upon stranded workers and their families since late March.  The court took suo motu notice of their plight, and called upon the Centre and states to appear in court and explain what steps were being taken to alleviate their misery.

I started by stating that the bench was undeniably right when it declared that the institution is not hostage to the government. It certainly is not. The truth seems to be that the Supreme Court is in thrall to the government. It has somehow come to believe the relentless propaganda machine that tells us that a government that won an absolute electoral majority is entitled to be the sole decision-maker for 130 crore Indians, and that even the courts should not question any decision taken by such majority government.

Indeed, this idea was driven home during the past two months’ hearings by the solicitor general, who often reminded the PIL petitioners as well as the court that his government knew best how to take care of the people. Tempting as it might be to place its “hope and trust” in a government that has an absolute majority, the Supreme Court might do well to remind itself that the ruling party secured 22.9 crore votes in 2019, representing 25.16% of the total electors, and 37.76% of the valid votes cast; as a proportion of the total population of the country, the votes garnered by the ruling party account for only 17.6%.

The balance 107.1 crore Indians who either were not registered voters, or chose not to vote for the ruling party, surely need to have a voice. And it is time that the Supreme Court hears those voices, and restores Oliver Mendelsohn’s image of it as “the most trusted public institution in India”.

The Supreme Court Must Resume its Role of Protector of the Rights of the People : Markandey Katju 

Our courts should start imposing heavy fines on politicians at whose instance illegal arrests and detention orders are passed.

I recently spoke on the telephone to a senior sitting judge of the Supreme Court and told him that the public perception of the vast majority of Indian citizens is that the Supreme Court, of late, has largely abdicated its solemn duty of upholding the constitution in its true spirit and protecting the liberties of the people.

Though while a sitting judge I was much senior to the judge I spoke to, I said that since I have retired I am no longer a judge, but a member of the public. I was therefore speaking  as a representative of the public, not as a judge, and the public perception is that the Supreme Court is no longer doing its constitutional duty of protecting citizens against political and executive high handedness, arbitrariness and illegalities. Instead, it seems to have largely surrendered before the  government, whose bidding it is often doing.

I told him that after the present lockdown is over, he should arrange for a meeting between me and some sitting judges of the Supreme Court (at his residence or elsewhere) in which I would like to present my views. He agreed to this.

I have written earlier about several instances where the Supreme Court seems to have failed in its duty of protecting the people’s rights, so they need not be referred to again.

In the Indian constitution promulgated on January 26, 1950, there are a set of fundamental rights of the people, modelled on the Bill of Rights in the US constitution. The judiciary was made the protector and guardian of these rights, otherwise they would remain only on paper.

A few months after the promulgation of the constitution, a constitution bench of the Supreme Court held in Romesh Thappar vs State of Madras that in a democracy people have a right to criticise the government. The court observed, “Criticism of government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression, or of the press.”

The same view in different words was taken in a very recent decision by Justice Abdul Quddhose of the Madras High Court in his historic verdict in Thiru N. Ram vs Union of India and anr in which the learned judge observed, “A very important aspect of democracy is that citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power.” He went on to say, “Criticism of policies of the government is not sedition unless there is a call for public disorder or incitement to violence.”

Justice Quddhose also observed, following the Supreme Court’s 1956 verdict in Kartar Singh vs State of Punjab,  that people in power must develop ‘thick skins’. In other words, the authorities should have broad enough shoulders to bear criticism.

This decision is very relevant in the prevailing situation today. Nowadays politicians in power are often very touchy, with huge egos, and unwilling to put up with any criticism from anyone. Well known cases are of Safoora Zargar, a young Kashmiri woman arrested on patently fabricated charges for criticising the Citizenship (Amendment) Act, Dr Kafeel Khan and Sharjeel Imam, etc.

Prof Ambikesh Mahapatra of Jadavpur University was arrested in 2012 for sharing a cartoon of West Bengal chief minister Mamata Banerji on social media, cartoonist Aseem Trivedi was arrested on a charge of sedition for making a cartoon depicting politicians as corrupt, and folk singer Kovan was arrested in Tamil Nadu in 2015 for criticising Jayalalithaa in connection with corruption in liquor business.

Journalists who criticise the govt or a Minister are often slapped with sedition charges or detained under draconian laws like NSA or UAPA, e.g. Kishorechand Wangkhem who was arrested in 2018 for criticising Manipur CM Biren Singh. A journalist, Pawan Jaiswal, was arrested in Uttar Pradesh in 2019 for reporting that children in a primary school in Mirzapur were being given only roti and salt as a mid-day meal. The researcher-columnist Abhijit Iyer-Mitra was denied bail by the bench of the Supreme Court presided over by then CJI ( and now MP) Ranjan Gogoi in December 2018 although his only ‘offence’ was at most a minor one – of posting a satirical tweet on the Konark temple (for which too he had promptly apologised).

On May 11, Dhavai Patel, editor of a Gujarati online portal  ‘Face of the Nation’ was arrested for sedition for publishing a news item that the Gujarat chief minister, Vijay Rupani, was likely to be replaced.

A large number of similar instances can be given of illegal and unwarranted arrests and detentions at the instance of vindictive politicians. The question is whether, like Bheeshma Pitamah turning a blind eye to the disrobing of Draupadi, the Supreme Court should ignore these blatant and glaring illegalities. What then will remain of the numerous verdicts of the court itself stating that the Supreme Court is a guardian of the people’s rights?

In Ghani vs Jones (1970),  Lord Denning observed: “A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest ground.” Whenever a habeas corpus petition (a petition praying for release from illegal custody) comes before a British judge, he sets aside all other files, and takes up the petition as having priority over every other case, since it relates to individual liberty. But what was the performance of the Supreme Court in the habeas corpus cases of Kashmiri leaders detained after the evisceration of Article 370 on  August 5, 2019? The cases were adjourned month after month, and many are still pending, whereas the petition of Arnab Goswami, known for his affinity to the government, was taken up on top priority basis. What message does this send?

In my opinion the Supreme Court (and high courts) should have taken suo motu cognizance of these patently illegal arrests and detentions, and quashed them with heavy costs, not only on the government committing these illegalities, but also on the police officers who carried out these illegal orders.

In an earlier article,  I have argued that policemen should refuse to carry out illegal orders. In the Nuremberg trials, Nazi war criminals took the plea that they were only carrying out orders of their superior Hitler, but that plea was rejected and many were hanged.

It is time now for courts to resume their solemn duty of protecting the liberties of the people, and start imposing heavy fines on politicians at whose instance illegal arrests and detention orders are passed, as well as policemen carrying out such illegal orders of political authorities.

Migrant Worker Crisis: The Supreme Court Has Abdicated All Responsibility

In a petition seeking to mitigate the miseries of migrant workers, the top court also indulged in what under normal circumstances would be considered frivolous talk.

Jagdeep S. Chhokar :  “How can we stop migrants from walking”, the Supreme Court is reported to have asked on May 15, 2020. The questions seemed quite incongruous on the face of it but bordered on being bizarre when seen in the light of a statement made by the solicitor general (SG) of India in the Supreme Court on March 31, 2020, that “there is no person walking on the roads in an attempt to reach his/her home towns/villages”. This was reportedly said while filing an affidavit on behalf of, none other than, the Union of India!”

Some other reportage of the same event also had SG Tushar Mehta saying, “I have instructions to state that no one is now on the road. Anyone who was outside has been taken to the available shelters”. The same report also quoted him as having said, “Home Secretary makes an official statement on record to say ‘as of 11AM on March 31, nobody is in the road. They have all been taken to the nearest shelter available’”.

This happened in the context of a petitioner seeking to mitigate the misery of thousands of migrants who were walking long distances on highways to go to their villages because there were no jobs, no place to stay, and no money to buy food, and no reliable means of transport. The three-judge bench said, “it was not possible for the court to monitor who is walking and who is not walking”.

The response of the SG was, of course, self-assuring. He said, “states are providing interstate transport. But if people get angry and start on foot instead of waiting for the transport to be provided nothing can be done. We can only request that people should not walk. Using force to stop them would be counterproductive”.

While the SG argued that using force “would be counterproductive”, the chief minister of the most populous state of the country directed district administrations to form special police teams to stop migrant workers from travelling on their own.

The bench also indulged in what, under normal circumstances, would be considered frivolous talk, usually not expected in such a setting when one of the judges “asked the petitioner whether he was willing to go and implement government directives if the Court grants him special pass”.

When the issue of 16 migrants being run over by a goods train while they were sleeping on the railway tracks, on May 8, was raised, the bench said, “How can anybody stop this when they sleep on railway tracks?”. 

'Supreme Court Has Let Down Migrant Workers, Vulnerable,' Says Justice A.P. Shah

In an interview to Karan Thapar, the former Chief Justice of the Delhi and Madras high courts, said he was disappointed with the way the SC has functioned at this time.

Karan Thapar : In a strong attack on the functioning of the Supreme Court during the coronavirus crisis, Justice A.P. Shah, a former Chief Justice of the Delhi and Madras high courts and a former Chairman of the Law Commission, has said he is “thoroughly disappointed” with the top court.

Differing with Chief Justice S.A. Bobde’s view that “this is not a situation where declaration of rights has much priority or as much importance as in other times,” Justice Shah said:

“This is not correct…(the) Court’s duty is more onerous in times of crisis.”

Justice Shah also questioned “why only a few judges are functioning and why aren’t all judges working from their homes?”

How Nepal's Supreme Court Upheld Dignity of Migrant Workers Without Diluting COVID Fight

The court's order reflected a novel understanding of equality jurisprudence and the disproportionate impact of the lockdown on migrant labourers.

Hardik Subedi : The Merriam-Webster Collegiate Dictionary defines compassion as “sympathetic consciousness of others’ distress together with a desire to alleviate it”. To borrow a phrase from Justice V.R. Krishna Iyer, which he used in quite a different context, every litigation has a touch of human crisis and is somewhat a legal manifestation of the vicissitudes of life.

With courtrooms echoing with stories of hardship in these times of profound crisis, compassion for the marginalised seems to be a much-needed virtue. That Chief Justice of India S.A. Bobde found the demand for wages by migrant labourers odd when “they’re being provided meals” tells its own sorry story. Especially when seen against the backdrop of the interim order recently passed by the Supreme Court of Nepal on the rights of migrant workers.

Similar to India, heart-wrenching images of migrant workers and their families, including children, walking hundreds of miles from the capital city of Kathmandu to their native places had stoked the ire of people in Nepal. The government declared a lockdown all over the country on March 24, which was initially extended until April 27 and later to May 7.

Despite the continuous lockdown for extended periods in a country where the average annual per capita income is below $1,000, the Nepal government’s silence on the delivery of relief has been conspicuous. The government, led by the Communist Party, has ironically remained apathetic to the plight of migrant labourers.

Prime Minister K.P. Sharma Oli, in a statement delivered around the same time as the Nepal Supreme Court passed its order, had said that the movement of anyone outside Kathmandu should be absolutely restricted. His estrangement from reality was also apparent in his monologue during the meeting with state governments where he promoted washing hands with ‘hot’ water and putting on sunglasses to prevent infection through the eyes.

The Supreme Court Is Locked Down and Justice Is in 'Emergency' Care

From the choice of cases it considers urgent to its handling of crucial matters impacting the lives of millions, the apex court is once again inviting comparisons with its conduct in 1975-77.

Prashant Bhusan : Even before a national lockdown was declared on March 24, the Supreme Court of India had already announced suspension of its normal working via a circular dated March 13, directing that “the functioning of the court shall be restricted to urgent matters with such number of benches as may be found appropriate” and thereby virtually shut down the courts.

After some days, they allowed hearing of some urgent matters by video conferencing which started on the March 25. However, the process of oral mentioning before any judge/officer who has decision making power for urgent listing of cases was done away with, with the result that even very urgent petitions – such as the one filed by Jagdeep Chhokar on April 17 seeking the return of migrant workers, stranded and helpless in shelter homes or other cities across the country, back to their home towns or villages – was not listed and seems now to be slated April 27, 10 days after filing an application for its urgent listing.  It is pertinent to point out here that the destitution of migrant labour in India – caught off guard due to the unplanned lockdown and pushed to the brink of starvation without work, wages or food – had, by this time, been covered by all major newspapers and portals nationally and internationally.

The apex court’s priorities

Mysterious – and in stark contrast – however was the fate of the petition filed by Republic TV editor Arnab Goswami, seeking protecting from FIRs registered against him in various states following a programme where he had falsely implied minorities were responsible for the lynching of three men (including two sadhus) at Palghar in Maharashtra. His petition was filed after 8 p.m. and listed the very next morning at 10:30 am.

This procedure for hearing of cases through video conferencing, as introduced by the Supreme Court, has gone through various hiccups and even when it has started functioning better, it is not without problems due to inaudibility, lack of connectivity, inability of counsel to complete submissions without interruption, background noises, etc.

In any case, hearing by video conference is not a substitute to a face to face hearing, since there is much cross talk and one cannot often hear what the judges are saying or put one’s point across effectively. Hence, the experience of these video conference hearings has been that these are short, truncated hearings where some cases, even serious and urgent ones, have been just adjourned or dismissed. Added to this is the infrequency of sitting of Supreme Court benches – with the result that on an average, instead of the usual 800+ cases being listed and heard on any miscellaneous day by the Supreme Court, the court is barely hearing 10-15 cases even on the day that it does function.

If Courts Only Favour the State, Justice Remains Unserved

Apoorvanand :“Baked without love, kneaded without knowledge!

Justice without flavour, with a grey crust

The stale justice which comes too late.”

These lines by Bertolt Brecht came to me when reading about the Supreme Court rejecting a plea by Harsh Mander and Anjali Bharadwaj. They had asked the court to direct the government to give monetary support to labourers who have been left without resources after the national lockdown was announced. The Supreme Court was not inclined to agree with them. It asked the Central government to submit a status report, and was satisfied with its efforts.

The plea was to give wages to the migrant labour who had lost their jobs. According to the India Legal Live,

“Chief Justice asked Prashant Bhushan that if the migrant workers were being provided meals then why did they need money for meals to which Mr. Bhushan replied “they don’t just need food in the shelter homes. we need to give them money to send to their families back home.”

Chief Justice Bobde negating Advocate Bhushan’s submissions said, “We cannot say at this stage that they are not getting the food.””

It was a very strange response to what Prashant Bhushan told the court. The chief justice could not understand the need for money when the workers were being provided with food. You don’t live only on food, the good justices must know.

The justices need not read experts writing about migrant labourers, and how they have families back in their villages waiting for money transfers. In earlier times, the postman was the most sought-after man in the villages, as he delivered the money orders. Loved ones who slogged in the factories, slept in kholis, bathed on public chapakals or under water taps saved money and wired it to their families.

As Poor Indians Suffer Amidst Lockdown, Constitutional Morality Leaves the Country

The apex court has identified constitutional morality to mean ‘a pillar stone of good governance’ which the Centre failed to deliver on for migrant labourers.

S. S Ray : The principle of constitutional morality did not find much traction until the beginning of the last decade. To be fair, it did find mention in a few judgments of the Indian Supreme Court prior to that, however, the concept was abstract.

Till date, there are roughly about 38 Supreme Court judgments that have dealt with this concept in some detail, or in passing.

Understanding what is meant by constitutional morality as a principle in law as opposed to applying the principle for the purpose of justiciability and claiming certain rights (including fundamental rights on behalf of a litigant) is one aspect of the matter.

The second aspect would essentially mean how the concept of morality is ordinarily understood i.e. societal morality that is different from constitutional morality and how the courts have interpreted that.

What is understood to be societal morality has to yield to constitutional morality when tested on the touchstone of the constitution as held in Sabarimala Temple matter. But the more topical question today is whether constitutional morality has necessarily to be stated and reiterated time and again by the Supreme Court. The same is actually a facet of institutional morality and political morality. In fact, societal morality, institutional morality and political morality all yield to constitutional morality. The need of the hour is for the Institutions that govern us to observe constitutional morality.

The first mention with respect to constitutional morality is found in the Constituent Assembly debates (November 4, 1948). The reference comes on the debate with respect to the details of administration included in the draft constitution, and which was alleged to have been borrowed heavily from the Government of India Act, 1935.

While responding to this, B.R. Ambedkar introduced for the first time the concept of constitutional morality as enunciated by George Grote.

What exactly Ambedkar said was that:

“While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the forms of administration has a close connection with the form of the Constitution. The forms of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.

It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.

In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution.”

Even in a Pandemic, How Can We Ensure the Judiciary Keeps Running?

The silver lining in a crisis as dark as COVID-19 is that it presents opportunities for change that must not be wasted.

Somasekhar Sundaresan : We are in the midst of an extraordinary and unexpected phase of the evolution of law and justice. The fear inspired by the COVID-19 pandemic has led to extraordinary circumstances and what would otherwise be unbelievable outcomes.

Not just in India, but around the globe, large sections of societies are happy to sacrifice, at the request of their incumbent governments, liberties that they would otherwise zealously guard and cherish, and rights that they would otherwise agitate to assert.

Put differently, around the world, societies are witnessing a “corona coup” – like the complex virus, this is a nuanced and sophisticated version of a coup. The term “coup” usually means a sudden, violent or illegal seizure of governance. But the term also means successfully achieving something considered very difficult. A corona coup is one where the executive arm of the State gets to occupy greater space in the jostling for space among institutions that govern the State.

Indeed, the fear of death in a society, and that too on a mass scale, can trump notions of the right to life. Worldwide, the crisis posed by the pandemic is leading to the occupation of greater territories of human agency by governments. Occupied territories that may not be easily vacated after the war is over. New “lines of actual control” get drawn after wars, and such crises, representing a new demarcation of territory occupied by the State and the territory occupied by the individual.

COVID-19 will come and go, but then there will always be the next virus and the next feared epidemic. The urgent need to implement strong preventive measures to prevent them will confer stronger powers of intervention on the State, and new lines of actual control will come to stay. The State may (justifiably, for most) demand a right to know where the individual has travelled, whom she has met, what her food habits are, religious and other societal predilections – all for studying if she is a risk to society when the next virus and the next epidemic threatens to take root.

When Freedom of the Press is Stricken With the Coronavirus

When citizens are banished to the innards of their homes, it is all the more necessary to keep the government accountable by allowing journalists to go out there and ask inconvenient questions and flag uncomfortable issues.

Sanjay Ghosh and Rhishabh Jetley : William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!” 

― Robert Bolt, A Man for All Seasons

William Roper was a member of the parliament of Westminster. He was married to Margaret, the daughter of Sir Thomas More. Sir Thomas was an English lawyer who served as chancellor to Henry VIII. His dogged opposition to Henry’s breakaway from the Catholic Church and refusal to take the Oath of Supremacy, that would amount to accepting the Tudor king as head of the Church of England, led to his conviction and execution for treason.  Bolt quotes him as saying, “I die the King’s good servant, but God’s First.”  Replace “God” with the ‘Constitution’ and you would have an ideal defender of the Rule of Law.

When the very existence and survival of a people are imperilled, it is understandable that passion for the Rule of the Law may be perceived as obstructionist, treasonous and even worse, moronic.  To this thought will be quoted the maxim Cessante Ratione Legis, Cessat Ipsa Lex – when the very reason for the law ceases, so does the law.  Did not Hobbes teach us that the state was born out of fear and the innate sense of self-preservation in man?  If man himself lost the battle for survival, what good would the state do for him?

Pushed against the wall, the constitutionalist would point out what Sir Thomas had said to his son-in-law. The ease with which our fear of the pandemic makes us willing to sacrifice our hard earned freedoms, including the freedom of the press – not so much as the right of journalists and newspaper companies to print, but the public’s right to know – is simply alarming.

Let us apply Thomas More’s test to take a careful look at the recent order of the Supreme Court in a public interest litigation ostensibly seeking relief for migrant workers stuck because of the lockdown.  The Parental Concern of the Court and its noble intentions are beyond question. These are unchartered waters and unfamiliar territories for all constitutional actors and we must indeed cut them some slack. While some may have had issues with the court’s good faith acceptance of the government’s assurance that it was up to speed in redressing the agony of the displaced labour, what did raise eyebrows was the court’s willingness, at the government’s nudging, to wade into the turbulent waters of press freedom and direct the media to be mindful of the state marrative. We shall explore the law on press regulation to understand whether the top court indeed was required to venture into this territory.

Freedom of the press and the constitution

Unlike the post apartheid progressive constitution of the Republic of South Africa, our constitution does not specifically list out “press freedom” as a fundamental right.  Our founding fathers, and a smattering of mothers, concluded that this would be addressed by the expansive ‘freedom of speech and expression’ which stood guaranteed as a fundamental right in Article 19 (1)(a). This right is not absolute; under Article 19 (2, the state can impose “reasonable restrictions” in the interests of sovereignty and integrity of India, 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 offence.

Over the years, courts have also evolved jurisprudence to read in the right of ‘Freedom of the Press’ into Article 19 (1) (a). In 1950, the Supreme Court in Romesh Thappar v. State of Madras observed that freedom of the press lay at the foundation of all democratic organisations, and held that a law could impose only those restrictions on the exercise of this right, which were allowed by Clause (2) of Article 19. Imposition of bans on circulation, pre-censorship and preventing publication of views, have been deprecated by the Court in several cases like Brij Bhushan and Virendra v State of Punjab.

In Sakal Papers v. Union of India, the challenge was to the regulation of the number of pages in a newspaper, number of supplements, and the size and area of advertisements. The government contended that this was commerce, and the right to trade, a separate fundamental right, could be restricted on grounds in Clause (6) of Article 19, that allow restrictions on the freedom of trade conferred by Art 19(1) (g). The court held that the dissemination of news and commercial activities of newspapers was entirely different, and dissemination of news and the right to freedom of speech and expression could not be taken away on any ground except those in Clause (2) of Article 19. The court further observed that the right to freedom of speech and expression included the right to publish and circulate one’s ideas, opinions and views with complete freedom, subject to reasonable restrictions.

In Bennett Coleman & Co. v. Union of India, the Times of India group complained against a newsprint quota and ingeniously argued that this commercial policy impacted upon press freedom as it limited news space.  The court agreed.  It held that the press had the right to free publication and circulation, and that the freedom of the press was both quantitative and qualitative.  In Indian Express Newspapers Pvt Ltd. v. Union of India, the court found a “press freedom” angle to even customs duty and auxiliary duty on newsprint. It held that levying tax on newspapers should not constitute an overburden nor should it single out the newspaper industry for harsh treatment.

In Secretary, Ministry of Information and Broadcasting, Govt of India and Ors v. Cricket Association of Bengal and Ors,  the apex court mined the “Right to Information” from out of the depths of Article 19.  This right was fleshed with the right to acquire information and to disseminate it. The court significantly held that the freedom of press included right to circulate, and to determine the volume of circulation. The court further held that right to communicate included the right to communicate through any media, whether print, electronic, or audio-visual.

The court in Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India held that freedom of press was not restricted to expression of thoughts and ideas which were “accepted” and “acceptable” but also to those which offended or shocked any section of the population. Freedom of speech and expression included the right to receive information and ideas of all kinds from different sources, and embodied the right to know. In Shreya Singhal v. Union of India, the court held that the content of the right under Article 19 (1) (a) would remain the same, no matter the mode of communication – thus illuminating the dark expanse of cyberspace with the constitutional glow of free speech.

The regulating law – Press Council of India Act

The regulator for the print media is the Press Council of India (PCI) set up by the Press Council of India Act, 1978. Section 13 (2) lays down the functions of the council, which include building up a code of conduct for the print media, ensuring maintenance of high standards of public taste, and growth of a sense of responsibility and public service. Under Section 14, if the council, either on a complaint or suo moto, has reason to believe that a newspaper or news agency has offended against the standards or journalistic ethics or public taste, or professional misconduct has been committed, it may hold an inquiry and warn, admonish or censure the offending party. It may even require any newspaper to publish any particulars relating to such an inquiry. Section 14 (4) stipulates that the decision of the council in such an inquiry would be final and not questioned in any court of law.

However, many have complained that this law has remained pretty toothless.  Also most chairmen, again post retirement placement points for justices, have remained content with the occasional press statement and slap on a truant wrist.  The irrepressible Justice Markandey Katju did add some colour to the office no doubt.  The recent suo moto action of the PCI against a Calcutta daily known to follow a fiercely independent stand for a satirical headline has again brought this institution into the limelight.

The PCI’s norms of journalistic conduct, 2019

The Press Council of India has also issued Norms of Journalistic Conduct from time to time. Principle 1 of the norms issued in 2019 requires the press to observe accuracy, and avoid the publication of inaccurate, baseless, graceless, misleading or distorted material. The press should report all sides of the core issue or subject, and not set forth unjustified rumours and surmises as facts.

Principle 8 requires the media to not pass on or elevate conjecture, speculation or comment as a statement of fact. Principle 12 states that the editor has the duty to see that on a controversial topic, all views are given equal prominence. Furthermore, if the veracity of any report or part of it is in doubt, it should be omitted. Principle 32 requires that newspapers, as a matter of self-regulation, exercise due restraint and caution in presenting any news, comment etc which is likely to jeopardise, endanger or harm the paramount interests of the state. Principle 41(iv) enjoins that the freedom of press involves the readers’ right to know all sides of an issue of public interest.  

For TV, the Cable Television Networks (Regulation Act), 1995

When parliament was legislating to regulate the press, the print media dominated.  The airwaves were national property and there was no need felt to regulate the state radio or infant state television broadcasts. In fact, every opposition party would consider them His Master’s Voice to the government of the day anyway.

The 1990s brought with it the cable television revolution with serials beamed into Indian homes from far way places such as Hong Kong. The law responded, and the Cable Television Networks (Regulation) Act, 1995, was enacted.

Section 5 of this Act stipulates that a programme cannot be transmitted unless it is in conformity with the prescribed ‘programme code’. Rules have been framed under this law and a programme code formulated. Rule 6 of the Cable Television Networks Rules, 1994, lays down the programme code and stipulates that no programme should be carried if any of the criteria are met, which include such a programme containing anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; being likely to encourage or incite violence or ifit contains anything against maintenance of law and order or which promote-anti-national attitudes;  contain anything affecting the integrity of the nation.

Furthermore, under Section 19, a cable operator may be prohibited from transmitting any programme or channel, if it is not in conformity with the prescribed programme code, or is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will or which is likely to disturb the public tranquility. Section 20 empowers the Central government to prohibit the operation of cable television network in any areas, where it is necessary or expedient to do so in public interest. The Central government may also regulate or prohibit the transmission or re-transmission of any channel or programme, if it is necessary or expedient to do so in the interest of the sovereignty, integrity or security of India, friendly relations of India with any foreign state, public order, decency or morality.

While this law does not provide for an independent regulator, as in the case of the print media, the private players have setup their own private regulators. The News Broadcasters Association has also framed a Code of Ethics and Broadcasting Standards to ensure impartiality and objectivity in reporting.

The government has not hesitated in using the vast powers under this law to enforce blackouts on truant channels. Recently, certain Malayalam channels bore the wrath, albeit briefly, for what the government concluded was objectionable reportage.

For digital news, the Information Technology Act, 2000

In addition to the media specific legislation, Section 69A of the Information Technology Act empowers the Central and state governments to direct any agency of the government or intermediary to block any information generated, transmitted, received, stored or hosted in any computer resource, if it is satisfied that it is necessary or expedient to do so in the interest of the sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign States, public order, or for preventing incitement to the commission of any cognisable offence provided for in the law.  

The media and the Disaster Management Act, 2005

Since we are concerned with regulation of the media during a pandemic, and the 21-day lockdown was imposed under the Disaster Management Act, 2005, it would be appropriate to refer to those provisions that concern this issue.

Section 51 of the law makes obstructing any officer or authority in the discharge of its functions under this law, or refusing to comply with any direction, an offence. Making a claim, knowing it to be false or having reason to believe it to be false, for obtaining any benefits has also been criminalised under Section 52. Similarly, making or circulating a false alarm or warning as to the disaster or its severity or magnitude, leading to panic, is an offence, and is punishable with imprisonment extending to one year or fine, under Section 54. Furthermore, under Section 67, directions may be given to any authority or person in control of any audio or audio-visual media or other means of communication to carry any warning or advisories regarding any threatening disaster situation or disaster, and the said means of communication and media as designated shall have to comply with such direction.

The media and the Indian Penal Code, 1860

Section 188 of the Indian Penal Code, makes disobeying any direction in an order promulgated by a public officer an offence, if such a disobedience causes or tends to cause obstruction, annoyance or injury, or any risk thereof to any persons lawfully employed. A higher punishment is provided if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray.

Section 269 states that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with up to six months’ imprisonment or with fine, or with both. Furthermore, Section 270 states that whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment extending to two years, or with fine, or with both.

Section 505 states that making, publishing or circulating any statement, rumour or report, with an intent to cause or which is likely to cause fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility, or with the intent to incite or which is likely to incite  any class or community of persons to commit any offence against any other class or community, will be punishable with imprisonment extending to 3 years or fine or both.

Prior restraint and pre-censorship

In 1988, the Supreme Court in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd held that any preventive injunction against the press must be “based on reasonable grounds for keeping the administration of justice unimpaired” and that, there must be reasonable ground to believe that the danger apprehended is real and imminent. The court in Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India applied the “real and substantial risk of prejudice” test to decide whether failure to injunct the publication would create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial.

Should Thomas More’s warning be heeded then?

Given the plethora of laws and the mesh of regulations that we have surveyed which equip the state to regulate the print and electronic media, in normal times as well as during emergencies such as the coronavirus pandemic, was it then really necessary for the top court to indulge a government with its observations on media reportage?

It will be argued that only the senseless and the sensationalist would object to a court in its Parens Patriae role handing out a pat of solidarity to a government weighed in by the unprecedented civilisational battle against the virus which has ravaged the world. It will be asked, was this not innocuous and harmless? After all, the court had also orally observed several feel good thoughts like encouraging bhajans, prayers and azaan to keep the morale of the migrant workers high?

Then it may be an appropriate time to dig out the voice of another justice during an emergency of another kind.  Penning his dissent at the cost of a chief justiceship, Justice H.R. Khanna wrote in 1975:

“The greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law… Extraordinary powers are always assumed by the government in all countries in times of emergency because of the extraordinary nature of emergency. More is at stake in these cases than the liberty of a few individuals or the correct construction of wording of an order. What is at stake is the Rule of Law.” 

Let us not be unmindful of what impact the words of the highest court can have, the message it can send.  When it speaks the language of restraint, it only emboldens the hands of those who are allergic to liberty.  Within days of this hearing, a state government was registering criminal cases against those publications whose news reportage did not mirror the acceptable narrative.

In nations around the world battling this pandemic – and some with a death toll in the thousands – the judiciary has refrained from reading the riot act to the media and weighing in favour of carrying the state narrative. They are conscious that when citizens are banished to the innards of their house, it is all the more necessary to keep the government accountable by allowing journalists at great personal risk to go out there and ask the inconvenient questions and flag uncomfortable issues.

What better to guide the court than the words of someone who was a journalist as well as a lawyer, and a Father of the Nation to boot. While reminding us that “one of the objects of a newspaper is…to fearlessly expose popular defects”, Gandhi said “Freedom of the press is a precious privilege that no country can forgo.”  While we light our lamps to dispel the virus, let us not consign the Mahatma’s words to darkness.

The Supreme Court Has Become an Unlikely Detractor of the Free Press

The court's order directing the media to publish the "official version" of developments has enabled a monopoly over information and means to effectively control public opinion.

Harshitha Reddy and Praduman Kaistha : A Public Interest Litigation (PIL) filed for the redressal of grievances of migrant workers during the coronavirus pandemic, specifically sought directions for government authorities to provide shelter and basic amenities to the migrant workers. On March 31, 2020, the Supreme Court passed a vague and unrelated order in this PIL directing print, electronic and social media to refer to and publish the official version about developments pertaining to the pandemic.

In making this arbitrary and callous leap, the apex court has not only demonstrated little regard for freedom of press, but also enabled and sanctioned the government’s endeavour of stifling criticism, establishing a monopoly over information and effectively controlling public opinion.

Legality of the order

At the outset, it is necessary to understand the genesis of this order. In response to the PIL, the Union of India filed a thirty nine-page status report, highlighting in detail all the actions undertaken by the Union government to fight COVID-19. The status report dismissed the existence of any legitimate cause for the migration of workers and stated that, “there was no necessity of migration of workers”.

Thereafter, without providing any basis or evidence for the same, the status report attributed the migration to the panic created by “some fake news.” On this basis alone, the Supreme Court concluded that the migration was “triggered by panic created by fake news that the lock down would continue for more than three months.” The Supreme Court then directed the release of a daily bulletin by the government to clear the doubts of people and ordered the media to “refer to and publish the official version about the developments”. In the same breath, the court ironically observed that it did not “intend to interfere with the free discussion about the pandemic.”

This order of the apex court is vague and has no basis in law. According to settled jurisprudence, the fundamental right of freedom of speech and expression cannot be restricted by judicial order as any restriction on a fundamental right must have a statutory basis. The rationale behind this is to ensure that deliberation precedes any restriction on the freedom of speech and expression.

This has been squarely defeated by the Supreme Court by flippantly imposing a restriction on the basis of an unsubstantiated fact put forth by the government, without providing the affected parties like media houses with an opportunity to be heard. In a PIL where the respondent (the government) sought a restriction on reporting and the petitioner was only concerned with the plight of migrant workers, the possible chilling effect of the order on freedom of speech went unaddressed.

Implications and aftermath of the order

In passing this order the apex court has masked the failings of the government. The principal causes of the exodus were the lack of foresight and planning, and not fake news. This is evident from the fact that all remedial actions were undertaken after the announcement of the lockdown and in response to the migration. Such delayed actions inevitably could not stymie the growing migration. The apex court has enabled governmental inaction to take a backseat by attributing the migration to fake news.

Such a restriction served on a platter by the judiciary, serves the government well for three reasons. First, is the immediate effect of the order, wherein the restriction came to be imposed on the very day the status report was filed. Second, is the undisputed finality of the order, as a similar restriction if introduced through executive or legislative action, could have been subject to challenge before courts. Third, is the vague language of the order which left it open to the government to determine the breadth of the restriction. The more detailed and expansive the “official version about the developments”, the lesser the room for free reportage.

Authorised by the decision of the court, on April 1, 2020, the Press Information Bureau, Government of India (PIB) released a circular stating that a daily bulletin will be released by PIB, “at 8 pm everyday to inform regarding government’s decisions and developments and progress on COVID 19.” A reading of these bulletins shows that it is a cherry-picked summary of the government’s political, economic and fiscal decisions, aimed at conveying the government’s success in fighting the pandemic.

The PIB daily bulletins are not merely restricted to official statistics of the people affected by COVID-19. Instead, they expansively outline various measures taken by the Central government, its individual ministers, and select government undertakings/ institutes in combating COVID-19.

This includes the government’s factual claims that the Food Corporation of India is ensuring an uninterrupted supply of wheat and rice throughout the country during the lockdown period; there is no dearth of medical supplies across the country to fight COVID-19; money is being smoothly disbursed to the beneficiaries of Pradhan Mantri Garib Kalyan Yojana by the Ministry of Home Affairs; the tweets of the Prime Minister; the contributions made by select ministers and companies to the PM CARES FUND; the blacklisting of 960 foreigners for their involvement in Tablighi Jamaat activities and the significantly improved BARC ratings of Doordarshan due to the re-run of its old shows such as the Ramayana and Mahabharata in the time of the lockdown.

In the above context, the directions of the apex court to “refer to and publish the official version about the developments” is nothing short of a diktat that glorifies and sanctions the “official version” of the government’s policies, financial packages, schemes and even, TV programmes. How is the media to effectively act as the fourth pillar of our democracy that criticises and questions the actions of the government when it is bound to faithfully report only the official version of the government?

The extent and the breadth of the apex court’s directions are left for anybody’s guessing. It may be argued that a strict interpretation of the order signifies that only what is stated in the bulletins can be reported by the media and nothing else. It may be argued with equal force that any coverage of COVID-19 measures must, at least, refer to the “facts” stated in the bulletins and that the media is at liberty to deal with other issues not covered by the bulletins.

This lack of clarity that shrouds the line between what is permitted and what is not, creates a chilling effect on the freedom of speech and is a weapon open to abuse. However, it is clear that reporting alternate or contradictory facts (for example, that the FCI is not providing an uninterrupted supply of wheat and rice) would constitute “fake news” and violate the order. Regardless of the specific intent and the enforcement of such an order, it sounds a death knell to the freedom of speech and expression and the free media of the country.

A democratic crisis

Accurate and responsible reporting is crucial to tackling the pandemic. The problem of “fake news” could have been adequately addressed at an individual level under the Disaster Management Act which specifically penalises the creation of false alarm or warning, leading to a panic. The concern of “fake news” cannot be touted as a reason to pass a blanket restriction across all forms of media, and put forth claims of the government, with all their misgivings and exaggerations, as the exclusive truth of the day.

At a time when the dissemination of information and research is paramount to tackling the crisis, the arms of the media must be strengthened and not cut off. Not only does such a measure silence any critic of the actions of the government, but it also limits the free flow of information which could assist in further improving existing policies.

In this context, the Editor’s Guild of India has issued a statement terming the advice of the apex court, “gratuitous and unnecessary” and expressed its anguish at the order by stating that, “no democracy anywhere in world is fighting the pandemic by gagging its media”.

Similarly, PEN Delhi and Committee to Protect Journalists noted with concern the growing intolerance of the government towards the media in India during the ongoing battle against COVID-19 and cited illustrative instances such as the prime minister requesting owners and editors of print to publish positive stories in this time of crisis, the police assaults on journalists covering the pandemic across Hyderabad, Mumbai and Delhi, the registration of FIRs against the founding editor of The Wire for “objectionable content” against the Uttar Pradesh chief minister and numerous other instances of assault and abuse of individual journalists for reports that are critical of the government.

The government’s attempt to establish a singular narrative of the battle against COVID-19 goes against the fundamental tenets of a democracy. This forms part of an insidious and self-aggrandising attempt of the government to establish an endearing face of the government in the minds of the Indian populace and the world at large. The government’s attempt to make all news its captive, under the pretext of preventing fake news, goes hand in hand with measures such as the creation of the PM-CARES fund for the mobilisation of COVID-19 donations (despite the existence of the PMNRF), which compels the common man to take note of the “care” of the prime minister.

The government will do well to not forget that a crisis cannot and should not be a gateway to accumulate power and elicit support. In these testing times, civil society must ask itself whether all it seeks is a false sense of comfort and an unflinching belief that the government is solving the crisis, and nothing else.

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

In the name of fighting a pandemic, the Supreme Court's response to the government's desire to control the dissemination of news raises concerns about the guarantee of free speech

Annalysis : New Delhi: On Tuesday, the Centre turned two petitions pertaining to the welfare of migrant workers affected by the 21-day lockdown into an occasion to demand the Supreme Court give it control over the media’s coverage of the COVID-19 pandemic.

But though the Modi government wanted the media to be told that nothing could be published about the pandemic “without first ascertaining the true factual position from the … Central government,” the bench comprising Chief Justice of India, S.A. Bobde and Justice L. Nageswara Rao refrained from accepting this demand for prior censorship.

Nevertheless, there was enough in the order passed by the court in Alakh Alok Srivastava v Union of India to leave the government satisfied, especially its strange conclusion about the reason for the mass exodus of migrant workers seen in recent days. Relying on the submission made by solicitor general Tushar Mehta, the bench said:

“The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months. Such panic-driven migration has caused untold suffering to those who believed and acted on such news.  In fact, some have lost their lives in the process. It is, therefore, not possible for us to overlook this menace of fake news either by electronic, print or social media.”

A close look at the status report, filed by the Centre, however, shows that the government made no such claim. It is not clear whether the solicitor general made such a claim in his oral submission during the hearing through video-conferencing. If so, such an explanation ought to have been rejected by the court as there has been no substantiation of the claim so far.

In paragraph 41 of the status report, the Centre claimed: “However, unfortunately, due to some fake and/or misleading news/social media messages, a panic was created.  At this juncture, only with a view to broadly bring to the notice of this Hon’ble Court, it may be pointed out that as per the last available census figures, there are approximately 4.14 crore who have migrated for the purpose of work/employment…. The present bare foot migration which has taken place consists of – on a very rough estimate – 5 to 6 lakhs persons across the country.”

In other words, the ‘panic’ being referred to here was not panic-induced migration but the fear that many more people were fleeing urban areas than was actually the case.

Elsewhere, in paragraph 48, the Centre claimed that it is “seriously considering and will shortly implement a system whereby the panic in the minds of these migrant workers is addressed keeping in view the socio-psycho local issue and they are offered requisite counselling.”

Indeed, this paragraph in the Centre’s status report should have made the court wonder whether the theory that fake news suggesting the lockdown would last for three months – and there is no evidence that such news was indeed circulating – could have triggered the bare foot migration of these workers. By the Centre’s own admission, the panic among migrant workers is rooted in socio-psychological factors, and not just some fake news relating to the duration of the lockdown.

In paragraph 56 of the status report, the Centre claimed:

“In an unprecedented situation of this nature, 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 the infectious disease which the world is struggling to deal with, any panic reaction by any section of the society based upon such reporting would not only be harmful for such section but would harm the entire nation.”

Using the fight against virus as the fig leaf, the Centre sought the apex court’s direction to legitimise official censorship thus:

“It is, therefore, in the larger interest of justice that when this Hon’ble Court has taken cognizance, this Hon’ble Court is pleased to issue a direction 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 as stated hereinabove.”

It is gratifying, however, that the court rejected the Centre’s plea for prior censorship of content in the media thus:

“In particular, we expect the media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments”.

But reading between the lines, the court’s order might be interpreted by the Centre as giving sanction for prior censorship of content in the media. This is because the court expressed its trust and expectation that all concerned, namely, state governments, public authorities, and citizens of this country will faithfully comply with the directives, advisories and orders issued by the Centre in letter and spirit in the interest of public safety.

The court drew attention to Section 54 of the Disaster Management Act, 2005 which provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic.  Such person shall be punished with imprisonment which may extend to one year or with fine.

It also underlined Section 188 of the Indian Penal Code, which imposes punishment for disobedience to an order promulgated by a public servant. “An advisory which is in the nature of an order made by the public authority attracts section 188 of the Indian Penal Code”, the bench made it clear.  All these, however, should not make the Centre assume that it could direct prior censorship of content in the media under these provisions.

In other words, prior censorship of content in the media using these provisions would clearly be disproportionate to the problem of meeting the threat posed by such content, and the court could have explicitly made that clear, to avoid any misunderstanding of its order.

Unfortunately, the Supreme Court’s order attributing the panic among migrant labourers heading to the villages from the cities to non-existent media reports suggesting prolonged lockdown for three months, amounts to absolving the Centre any responsibility.

Indeed, if the multiple interviews which the migrant labourers have given to the media is any indication, they chose to return to their villages because the prime minister’s address to the nation hardly sought to allay their fears and apprehensions even during the 21-day lock down, let alone the imaginary panic spread about its lasting for three months.

The Centre Is Back to Using the Bogey of 'Fake News' to Try and Suppress Press Freedom

There are no credible reports suggesting that migrant workers decided to walk home based on fake news.

Devika Tulsiani and  Sauthik Banerjee :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 state’s claim..

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 state’s claim – evidently made orally by the solicitor general and noted in the court’s 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 one’s 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 people’s 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 Centre’s 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.

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 exposé 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.

'Attack on Freedom of the Press'

he Founding Editors of The Wire issued a statement on April 1 describing the FIR registered by the UP Police as aimed at stifling legitimate expression and factual information.

On Wednesday, April 1, the Uttar Pradesh Police in Faizabad registered an FIR against The Wire on the complaint of an individual under Sections 188 and 505 (2) of the Indian Penal Code.

Section 188 refers to disobedience of an order issued by a public servant and 505 (2) to “statements creating or promoting enmity, hatred or ill-will between classes”.

The FIR cites a passage without mentioning the date or headline of the article it is drawn from:

The founding editors of The Wire have issued a statement in response to the FIR, which is appended below.

Statement by the Founding Editors of The Wire

We have come to know through social media that an FIR has been registered under Section 188 and 505(2) of the IPC against The Wire by the UP Police in Faizabad.

A bare perusal of the FIR shows that the offences invoked are not even remotely made out and that it is aimed at stifling legitimate expression and factual information. The UP police seems to think its job is to go after those who criticise the CM. The registration of an FIR is a blatant attack on the freedom of the press.

The government of Yogi Adityanath in Uttar Pradesh does not seem to have learnt anything despite the strictures passed against it by the Supreme Court in June 2019 when the court ordered the release of a journalist whom the state had illegally arrested for a tweet. The right to liberty is a fundamental right and non-negotiable, the court had said.

What the FIR says we have stated – that Chief Minister Adityanath attended a public religious event in Ayodhya on March 25 after the Prime Minister had announced a national lockdown to deal with the coronavirus challenge – is a matter of record.

No coercive action against pvt firms for non-payment of full wages during lockdown: SC

New Delhi, Jun 12 (PTI) The Supreme Court on Friday directed the Centre and states not to take any coercive action till July end against private companies, which have failed to pay full wages to their employees during the coronavirus-induced lockdown period.

A bench of Justices Ashok Bhushan, Sanjay Kishan Kaul and M R Shah said industries and employees need each other and they should sit together to arrive at a settlement on the issue of payment of wages.

The bench, which passed an order in the matter, asked the state governments to facilitate such settlement process and file its report with the labour commissioners concerned.

It also asked the Centre to file an additional affidavit within four weeks with regard to the legality of Ministry of Home Affairs' March 29 circular which had mandated payment of full wages during the lockdown period.

The bench posted the petitions filed by various companies against the March 29 circular, for further hearing in last week of July.

The apex court asked the Centre and state governments to circulate its order through labour departments to facilitate the settlement process.

The Ministry of Home Affairs (MHA), in its March 29 circular, had asked all employers to make payment of wages to their workers without any deduction for the period their establishments were under closure during the lockdown to contain COVID-19.

The Secretary (Labour & Employment) had also written to chief secretaries of states to advise employers not to terminate employees from their jobs or reduce their wages amid the challenging situation of the pandemic.

Attorney General K K Venugopal, appearing for the Centre, had earlier told the court that as the people were migrating after the lockdown, the government came out with the notification to ensure that the workers are paid to help them in staying put at workplaces.

The top law officer had referred to the provisions of the National Disaster Management Act to argue the validity of the March 29 circular.

The Centre had also filed an affidavit justifying its March 29 direction saying that the employers claiming incapacity in paying salaries must be directed to furnish their audited balance sheets and accounts in the court.

The government had said that the March 29 directive was a "temporary measure to mitigate the financial hardship" of employees and workers, especially contractual and casual, during the lockdown period and the directions have been revoked by the authority with effect from May 18.

While requesting the top court to dispose of as infructuous the batch of pleas challenging the March 29 notification, the government had said the "impugned notifications have outlived their life and adjudication of the same would only entail an academic exercise as it would not be in the interest of the public to seek recovery of salaries paid to employees and workers for the said 54 days"

'Suffering of Poor Is Constitutional Concern. But Don't Look to SC for Answers'

The three-week old national lockdown and the government's reaction to it has raised key constitutional concerns, legal scholar Gautam Bhatia tells Karan Thapar.

Karan Thapar : The three-week old national lockdown has raised at least two key constitutional concerns and the government’s attempt to mitigate its adverse impact on the poor and vulnerable has raised a third, says the legal scholar Gautam Bhatia.

However the Supreme Court’s response is disappointing, he noted.

In a 30-minute Skype interview to Karan Thapar for The Wire from Oxford, Gautam Bhatia said that a national lockdown which disproportionately affects the poor and vulnerable compared to the rich and comfortable, breaches the equality clauses of the Indian constitution (enshrined in Article 14) as well the right to life guaranteed by Article 21.

Elaborating on the second point, Bhatia said the Supreme Court has repeatedly ruled that the right to life is more than “bare animal existence.”

However, tens if not hundreds of millions of daily wage workers have been reduced to a bare animal existence. Clearly, therefore, their right to life has been affected. However, Bhatia told The Wire that the government can legitimately argue that a lockdown is necessary for the greater good and this is a policy matter and not one for the courts to entertain.

He does not believe the courts will entertain these concerns. But the adequacy of the government’s mitigation efforts to alleviate the suffering of the poor and vulnerable is another matter altogether.

Bhatia told The Wire that because the constitutional rights of the poor and vulnerable have been affected (Articles 14 and 21) the govt has a constitutional duty and not just a social or moral responsibility to adequately mitigate the plight of the poor and vulnerable.

He said the government cannot escape this or dilute its response on the grounds it cannot afford adequate mitigation.

There is a minimum core that the government has to provide which, Bhatia said, is the level of living daily wage workers had before the lockdown. The government has to find the money to fulfil this constitutional duty.

Bhatia said as things stand daily wage workers have fallen below the minimum core and this is an issue that can and has been raised in the courts. However, Bhatia is disappointed by the response form the courts and was critical of a comment attributed to Chief Justice S.A. Bobde who reportedly said if wage workers are getting food, why do they need money.