Press freedom in india

Media raids and breaking the silence on press freedom

On February 14, 2023, the Income Tax Department carried out 

1 a “survey action” on the offices of the British Broadcasting Corporation (BBC) in New Delhi and Mumbai. 

2 After continuing this survey for three days, a press release was issued by the Central Board of Direct Taxes (CBDT) citing an alleged evasion of taxes on remittances and discrepancies दो बातों में) असंगति in BBC’s transfer pricing mechanism. 

3 Many media organisations such as the Press Club of India have described the raids as “deeply unfortunate”; the Editors Guild termed them as “intimidation धमकी”.

4  Even those who may favour the tax survey will confess that the 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. 

5 In an emergency secret order issued by the Ministry of Electronics and Information Technology, the documentary’s web links were blocked on January 20, 2023. 

The timing and nature of the events points to something being rotten in the state of Denmark.

Chilling message

At the root / reason of these “survey actions” 

1 is an attempt to instil किसी के मन में कुछ बैठाना fear and self-censorship that begins with knocking on the doors of the offices of journalists.

2  Today, these actions have become sinister अमंगलसूचक as they now involve the seizure of devices.

3  Hence, an unpleasant surprise turns into severe shock when journalists, as in the case of the BBC, are treated as potential criminals.

The CBDT press release gives us clues when it states that “crucial evidences by way of statement of employees, digital evidences and documents” were gathered

1 There are more pointers such as the one provided by the BBC which said that on February 19, 2023, “journalists’ computers were searched,

2  their phones were intercepted पकड़ना  and information was sought from them about their working methods”. 

3 Even if the case of the CBDT is perceived as legitimate विधिसंगत, it would at its very best be limited to an accounting and financial investigation. 

4 Without any clear and compelling reasons to extend a digital dragnet महाजाल on working journalists, this is what can be defined as a fishing expedition. 

5 It becomes important here to consider the wider trend of the extraction of sensitive data from journalists by using the tax and police departments across India.

6 Since 2018, there have been at least 10 reported instances of device searches that impact press freedom

Beginning with the Quint, they have gone on to include the proprietors मालिक and senior editors of publications such Alt News, Bharat Samachar, Dainik Bhaskar, NewsClick, The Wire, the Independent and Public-Spirited Media Foundation (IPMSF) and journalists such as Fahad Shah, Rupesh Kumar Singh and Siddique Kappan. 

7 This anecdotal कि़स्‍सों पर आधारित जो ग़लत भी हो सकता है list presents an incomplete data set as the Union government has stoutlyसशक्त या सक्षम defended its inability to keep count.

Half truth in the executive response

Not our responsibility 

1 In a parliamentary response dated August 10, 2022, the Ministry of Home Affairs has stated that 

2 since “police” and, “law and order”, are topics within the competence of State governments, it cannot “centrally maintain” device seizures of journalists. 

3 This is a half truth for two reasons. The first is that the Crime in India report queries data from State governments and can easily be extended to include data on device seizures of journalists. 

पहला यह है कि भारत में अपराध की रिपोर्ट राज्य सरकारों के डेटा पर सवाल उठाती है और पत्रकारों के उपकरण बरामदगी के डेटा को शामिल करने के लिए इसे आसानी से बढ़ाया जा सकता है।

4 Second, 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.

 Such institutional evasion only increases suspicion

1 about the bona fides of prosecutions 

2 and also represents a lack of intent for any studied consideration by the executive, particularly the Union government. 

3 it mean that protection of freedom of speech, especially its most critical voices, is a democratic duty limited to the courts.

Code of Criminal Procedure, 1973 

This analysis has been dealt with in a paper that specifically looks at powers to unlock smartphones, drawing from the Code of Criminal Procedure, 1973 — the procedural law to govern criminal cases in India.

 criminal courts rarely check the police for their investigatory practices and evidence collection.

How much legal such officer action ? 

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”.

 Oblivious to the limitations and spirit of the text in the Income Tax Act, 1961, abuses will only increase given the perceptible political interests and the impossibility for any real sanction.

A way out

what is the role that constitutional courts play?

1 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).

2  More than five years since the judgment was first pronounced, its use to the criminal justice system here is awaited in cases of electronic evidence.

3 Stricter procedural safeguards are required today due to digitisation, as 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.”

4 Such guidelines will only provide partial relief.

5  It will require case specific and clear pronouncements on facts that consider how legal processes are abused ग़लत ढंग से प्रयुक्त करना in the device seizures of journalists. 

6 However, as jurist Rajeev Dhawan observed in 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.

प्रेस की परिचालन और संस्थागत जरूरतों पर दिया गया आंशिक ध्यान ... ऐसा लगता है कि समाप्त हो गया है"। दशकों से प्रेस की स्वतंत्रता पर वास्तव में एक लंबी और दुखद चुप्पी रही है।

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. 

For instance, 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. 

Today, for a free and fair press, not only journalists but even our courts need to act without fear or favour.

सर्वोच्च न्यायालय को "प्रभाव और परिणाम" के सिद्धांत को पुनर्जीवित करने और लागू करने की आवश्यकता है ताकि govt  के व्यापक work पर विचार किया जा सके जो हमारे आपराधिक न्यायालयों की प्रथाओं को आकार देगा। 

उदाहरण के लिए, बीबीसी के मामले में, अदालत को निर्धारित करने के लिए एक प्रासंगिक तथ्य कर चोरी के आरोपों तक ही सीमित नहीं रहना  है, लेकिन क्या जांच एक बदले द्वारा प्रेरित है जो प्रधान मंत्री की आलोचनात्मक है। 

आज एक स्वतंत्र और निष्पक्ष प्रेस के लिए न केवल पत्रकारों बल्कि हमारी अदालतों को भी बिना किसी भय या पक्षपात के कार्य करने की आवश्यकता है।

source the Hindu