Curbing Media Freedom Through Legal Lockdowns

South Asia presents a uniformly discouraging picture in terms of media freedom as  governments across the region, increasingly made use of the law to clampdown on the independent media and censored journalists for their news reports and activists and citizens for their views in digital spaces and on social media.  

The Covid-19 pandemic and the resultant stringent lockdowns saw journalists working against stiff odds and at great personal risk, with little or no support or safety equipment. Journalists who reported on hardships caused to people because of restrictions on movement and curbed access to essential commodities and services were met with the heavy hand of the law. 

In order to delegitimise journalists and crush their morale, their reporting was termed fake news. Accusations of misinformation became a common pretext on which to book journalists or send them legal notices.

In 2020-21, a variety of tactics were used to stifle the freedom of expression of journalists and restrict their work. Journalists, particularly those critical of the government, were subjected to a wide spectrum of laws and action by law enforcement agencies. In many cases, the process itself is the punishment, due to lengthy and harrowing legal procedures, expenses involved and denial of bail, affecting a journalists’ right to work.

Across South Asia, these twin tactics – penalising journalists or debunking verified news as fake – resulted in repression, censorship and intimidation and delegitimised attempts by the media to hold governments to account. Reports of the lockdown and resultant disruption in the lives of scores of people, loss of livelihoods, destitution and the extreme vulnerability of citizens across South Asia due to the collapse of public health systems were sought to be criminalised and silenced. Along with lack of transparency by government, there was an increasing tendency to centralise information and block access to means of independent verification, thus making it harder for the media to do its job of informing the public during a time when accurate data and information were crucial.

Afghanistan continued to be exceedingly dangerous for journalists who faced threats from government, security forces and armed extremist groups. The impunity with which women journalists and other media workers were killed by the Taliban and the Daesh (IS) (six between September 2020 and January 2021) only underscores how precarious journalism is, especially with the scheduled US troop withdrawal from the country. 

Press laws in Afghanistan mandate that the Commission for the Verification of Press Offences deals with complaints against media and journalists after which they are transferred to appropriate courts. Despite this legal protection, agents of the National Department of Security (NDS) arrested two journalists, Mahboboalah Hakimi of Radio Bayan (Word), for allegedly insulting the president in a Facebook post. The home of Farough Jan Mangol, the Reuters news agency’s correspondent in Khost was searched without a warrant and the NDS later said it was a mistake. 

The Covid-19 pandemic worsened the situation and journalists found it difficult to access information on those affected and measures to deal with the public health crisis.  Danish Karokhel, the director of Afghanistan’s biggest news agency, Pajhwok Afghan News, was subjected to intense questioning and harassment after the agency reported that 32 ventilators intended for Afghan coronavirus patients had been stolen and sold to Pakistan. The agency was accused of acting against national security.

The government in Afghanistan proposed several amendments to the Mass Media Law 2006, meant to drastically curtail the freedom of press. In an open letter to President Ashraf Ghani media houses in Afghanistan said that the proposed amendments are in contravention of Articles 7, 34, 120 and 122 of Afghanistan’s Constitution. The amendments included increasing the authority of government’s monitoring organisations, reducing the rights of media companies and journalists, reducing the independence of national television, allowing government censorship before and after publication – and most controversially- requiring journalists to reveal their sources to government bodies including the security services. The amendments were withdrawn after widespread protest.

According to the 14th report of the Afghan Journalists Safety Committee (AJSC), the “dramatically increased levels of direct attacks and assassinations of journalists at the end of 2020 has created widespread panic among media outlets and journalists across Afghanistan. These attacks have had a noticeably adverse effect on impartial and objective reporting, with many journalists admitting to reconsidering both how and whether to report on certain topics for fear of reprisal – effectively amounting to the increasingly widespread practice of self-censorship. Additionally, the economic impact of Covid-19 has compounded existing financial challenges for media outlets, often frustrating their efforts to raise sufficient funds, and thereby their capacity to generate media content.”

Bangladesh continues to deal with media critics under the now notorious Digital Security Act 2018. The death in police custody of blogger Mushtaq Ahmed in February 2021 once more shone the spotlight on this broad ranging draconian law. Along with cartoonist Ahmed Kabir Kishore, Mushtaq Ahmed had been under the DSA for allegedly spreading rumours and misinformation about the pandemic. Kabir Kishore who, like Mushtaq Ahmed had been denied bail for ten months, was finally released on bail on March 4, eight days after the death of blogger Mushtaq Ahmed. (For more on the DSA see chapter xxx).

The legal environment for journalists in Bangladesh is also circumscribed by poorly defined defamation laws which are arbitrarily implemented. For instance, magistrates permit unrelated third parties to bring defamation cases on behalf of someone ostensibly injured, leading to a serious chilling effect on freedom of expression.

In Bhutan, while the Constitution guarantees the right to freedom of speech, opinion and expression, a recent notification issued by the Thimpu Thrombde (administrative division) established a protocol mandating media professionals to seek written permission to avail information. The Thromde issued a notification on 12 April 2021, asking any individual or media person wanting to avail information to fill up a form and wait for the response from the media relations officer.

The president of Journalist Association of Bhutan, Rinzin Wangchuk, said the Thromde’s new protocol comes at a time when journalists in the country are already facing challenges in access to information. He said such requirements will further hinder journalists from carrying out their duties of informing the people. “It will cause a delay in the dissemination of information to the public.

An editorial in Bhutan’s largest circulated English daily Kuensel called upon the revocation of this rule, stating that this was not the first time the bureaucracy was trying to disrupt relations between the media, the government and public officials.

 Lawyer Sonam Tshering in his article said Thimphu Thromde’s notification on how to request information from them is nothing short of an authoritarian attitude that undermines the fundamental freedoms of both media and individuals seeking information and threatens the foundations of democracy. It is unprecedented in the history of Bhutan’s democracy where local government –which is expected to be the closest democratic government to the electorate – has decided to restrain the right to information including the right to reject and discretion to change the existing form without notice. 

In India, both central and state governments were watchful of social media coverage of their actions, schemes and policies and arbitrarily punished journalists for a mere tweet or Facebook post.

In 2020 alone, 67 journalists in India were “arrested, detained, interrogated or served show cause notices for their professional work”, according to a Free Speech Collective report. The journalists primarily worked for non-English media houses, were freelancers or worked for digital media. 

Journalists were booked under a dizzying variety of laws – ranging from the Unlawful Activities Prevention Act, 1967 (UAPA) Information Technology Act,2000 (IT Act) Disaster Management Act, 2005 (NDMA) and the 124-year-old colonial era Epidemic Diseases Act, 1897.  Involvement of higher law enforcement agencies like the Enforcement Directorate (ED) and National Investigative Agency (NIA) were also part of the government’s legal arsenal to intimidate journalists and media houses. 

As in previous years, various sections of the Indian Penal Code (IPC) sections were used by the police to browbeat journalists. Journalists were booked for ‘fake news’ under the IPC  sections 505 (statements likely to create public alarm or likely to incite the public) and 506 (criminal intimidation) for public mischief and criminal intimidation. The sedition law was also applied widely. Section 124A of the IPC- is a major sedition law which punishes invoking hatred or disaffection against the government. A non-bailable offence, it carries both imprisonment and fine. 

The government’s frequent and unrelenting use of sedition laws prompted the IFJ and the International Press Institute to write a letter to Prime Minister Narendra Modi, which said: “The use of sedition laws to harass independent, critical journalists is not only a gross violation of the country’s international commitments, it is also an attempt by the government to silence any criticism. Journalistic work cannot be equated to sedition or undermining security.”

The letter also observed that the 2020 pandemic and ensuing health crisis “is being used as an excuse to silence those who have exposed shortcoming in the government’s response to it…”  Indeed, the government took ample advantage of periods of disturbance and unrest in the country to stifle the voices of dissenting journalists. Spikes in legal action against journalists were evident where journalism was related to effects of the pandemic and the government’s handling of it, the Hathras gangrape and the farmer’s protests. 

Another tactic was to delegitimise journalists by denying their professional identity. For example, in one instance, a well-known Kashmiri photojournalist was termed a ‘Facebook user’.

Pandemic and lockdown

Wherever journalists exposed negligence and apathy by the administration – whether with regard to challenges faced by healthcare workers, questioning quarantine policies, reporting on the poor quality of PPEs, deaths due to hunger and migrant workers not getting rations –  they had to face consequences. For example, executive editor at Scroll.in, Supriya Sharma, who published a report about how people in a village adopted by the Prime Minister went hungry during the lockdown, was charged under various sections of the IPC, including defamation. 

A report by Newslaundry noted that a number of journalists were prevented from doing their work since the nationwide lockdown of March 2020. The journalists were impeded from working through “police interrogation, notices, detention, FIR, arrest and assault”. 

Journalists were booked under IPC Section 188, related to disobeying a public servant’s order, and Section 505 (1)(b), which punishes any action causing fear and alarm to the public, inducing individuals to commit an offence against the state. 

Journalists also faced charges under the National Disaster Management Act, sections of which penalise individuals for spreading false alarms.  The Epidemic Diseases Act, 1897 also became a common tool to impede journalists. This British era law empowers the state to take special measures to prevent the outbreak of dangerous epidemic diseases. It has been used against patients, journalists and Opposition leaders across the country. 

India’s Information Technology Act was also used to target journalists. Journalists from various parts of the country such as Himachal Pradesh, Tamil Nadu, Chhattisgarh, Andaman and Nicobar Islands, Bihar and Maharashtra were booked for critical reporting around government handling of the pandemic. In Tripura, the state government issued a notice to a website which published negative reports about the administration’s response to COVID while one journalist was assaulted.  

However, the Uttar Pradesh government led the ranks in cracking down on questioning journalists.  In general, journalists who reported gaps and inadequacies in government schemes in Uttar Pradesh — like the Swacchh Bharat Mission and gaps in access to education and food welfare —received notices or were booked by the police. Various state officials such as District Magistrates, sub-divisional magistrates, members of the Uttar Pradesh Special Task Force and the UP Police were involved in hounding journalists. 

Hathras gang rape

The brutal gang rape of a Dalit teenager in Hathras district placed the spotlight on Uttar Pradesh for its troubling record of crimes and violence against women. The UP government tried its best to control media coverage of the incident and banned the media from entering the village where the crime was committed.

Siddique Kappan a journalist who wrote for Malayalam news organisations was on his way to Hathras when he and three others were charged under the UAPA and the IT Act in October 2020. The FIR by the UP Police against them claimed that they were going to Hathras with an intention “to breach the peace” as part of a “conspiracy”.

The Enforcement Directorate (ED) also got involved and filed a chargesheet in 2021 against Kappan and others, accusing them of money laundering. They were charged on grounds of their association with the Popular Front of India and its student wing the Campus Front of India (CFI), which according to the ED were involved in funding and participating in the protests against the Citizenship Amendment Act, the 2020 Delhi riots and protests against the Hathras gangrape. 

Farmer protests

The introduction of new Farm Bills in September 2020 which brought thousands of farmers to the streets in protest, especially in North India, received wide coverage in the media. But many journalists who covered the protests also bore the brunt of police violence and legal action. 

 First information reports (FIRs) were filed by the police in Delhi, Madhya Pradesh and Uttar Pradesh against six journalists Rajdeep Sardesai, Mrinal Pande, Zafar Agha, Vinod Jose, Paresh Nath, and Anant Nath – and Congress politician Shashi Tharoor for “misreporting” on a Republic Day farmers rally. The FIRs were filed in connection with tweets by the journalists about the death of a protester during the rally. Most of the FIRs cited IPC sections related to sedition, criminal intimidation, promoting enmity, provocation to break public peace, criminal conspiracy and outraging religious feelings. The journalists were also booked under the Information Technology Act. An FIR was also filed against an editor who published an article questioning the events which led to the death of the protester. Delhi Police detained at least two journalists covering the farmer protests. 

The Hindu newspaper said in an editorial that the FIRs were “part of the now-familiar practice of weaving a narrative of an imagined threat to national security”.  “It also shows a tendency not to miss an opportunity to harass and intimidate journalists.” The government also employed the National Investigative Agency (NIA) to summon 40 protesters for questioning, including a Punjab-based journalist for their supposed links to a separatist group.

Reckoning with the might of the state

Conditions for freedom of expression were far from encouraging across the country, but in Kashmir, given the government’s tight control of the media, the curbs resulted in serious day to day challenges for journalists. Kashmiri journalists are forced to regularly reckon with the might of the state, exercised through detention, raids, arbitrary slapping of the UAPA, physical assaults by the police and their reports repeatedly denounced as fake news. 

While the UAPA became a common tool to clamp down on student leaders, activists and journalists across the country, in Kashmir, the UAPA was used by the government ‘for anything and everything’, whether protesters, academics or journalists.

UAPA charges were pressed against 25 year old photojournalist Masrat Zahra, The Hindu correspondent Peerzada  Ashiq and the journalist Gowhar Geelani.  Reporting against the army also invited FIRs. Two websites, The Kashmir Walla and The Kashmiriyat faced FIRs for publishing reports which showed the Indian Army in an adverse light. 

These clampdowns came when Kashmir was already reeling under the world’s longest communication shutdown in the wake of the sudden revocation in August 2019 of Article 370 of India’s Constitution that bestowed special status on the state of Jammu and Kashmir. After the restrictions on the media became even more stringent. Following its downgrade from state to Union Territory, the Jammu and Kashmir government announced a ‘Media Policy 2020’ which regulates advertising in media outlets, demands the thorough verification of the antecedents of each journalist and warns against fake news and anti-national activities.  

In October 2020, the government authorities sealed the Srinagar office premises of The Kashmir Times, an English language newspaper.  The executive editor, Anuradha Bhasin, termed it an act of vendetta for speaking out against the government and criticism for the abrogation of Article 370 and media restrictions imposed on Kashmir. In the same month, the NIA conducted raids across the offices and homes of a number of journalists, writers and human rights activists. The Srinagar office of the newspaper Greater Kashmir was also part of the raid, as were the residences of Khuram Parvez who is with the Jammu and Kashmir Coalition of Civil Society and Parveena Ahangar, the founder of the Association of Parents of Disappeared Persons. The raids point to the challenging environment in which journalists and human rights defenders function in Kashmir, their work constantly being subject to surveillance and suppression.  

In another demonstration of the long arm of the law, the Enforcement Directorate raided the Delhi office of Newsclick, a digital news outlet and the homes of its editors on grounds of alleged money laundering. The Editors Guild of India condemned the raid and said of Newsclick: “In the recent past the website has been at the frontline of reporting on the farmers agitation, the anti-CAA protests, and has been critical of various government policies and of a few powerful corporate houses,” 

Meanwhile a Newsclick report said that it has become a routine practice for the government to deploy government-controlled agencies to deal with all those who disagree with and criticise the government. In the past, the Income Tax Department, the ED, various Central investigative agencies like the Central Bureau of Investigation and National Investigation Agency, have been used against journalists, political leaders and  farmers’ leaders.

New digital media rules

The government took a major step to limit the independence of digital media through the draft Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, introduced by the Ministry of Electronics and Information Technology. The new rules seek to impose government oversight on digital news media and also prescribe a code of ethics. A committee of government officials would oversee the code’s implementation and have the power to block content or order the publisher to modify or delete it. 

The Editors Guild criticised the rules which would enable the government to government to “block, delete, or modify published news anywhere in the country without judicial oversight”. The new provisions “can place unreasonable restrictions on digital news media”, the statement said. It also noted that the government did not consult with stakeholders before notifying the rules. Concerns were raised by Digipub News India Foundation, which said the rules “appear to go against the fundamental principle of news and its role in a democracy”. (For more the new Rules, see chapter xx)

Tweets and Facebook posts invite legal action

The government tried its best to control media narratives over adverse episodes. To meet this objective, social media became hunting grounds to identify and control critical voices. Journalist Prashant Kanojia was arrested in August 2020 by the Uttar Pradesh police for a tweet which suggested that a right-wing leader had asked for Dalits, STs and OBCs (all marginalised castes) to not be allowed to enter the Ram Temple in Ayodhya. Kanojia was arrested on grounds of disrupting communal harmony and forced to spend two months in jail before being granted bail.   FIRs were registered under the Information Technology Act against eight twitter handles and also the journalist Barkha Dutt’s Mojo Story over tweets regarding the poisoning of three Dalit girls in Unnao.  The FIR against Mojo Story was on the grounds of false reporting. 

The police registered a criminal case against the editor of Shillong Times, Patricia Mukhim, for a Facebook post where she criticised inaction over an incident where a group of tribal boys attacked non-tribal ones in Meghalaya. The case which was registered under various IPC sections for promoting enmity between different groups, was quashed by the Supreme Court. 

Kashmiri journalist and editor of Kashmiriyat Qazi Shibli who was earlier detained in prison under the Public Safety Act for tweeting an official order on the movement of paramilitary troops was released in April 2020. But he was detained once more by the cybercrime police in July 2020. 

Action against individual journalists

The state continued hounding independent journalists who exposed crony corruption and wrongdoing by the government or big corporations. An arrest warrant was issued by a court in Gujarat against the journalist Paranjoy Guha Thakurta, in a defamation suit filed by the Adani Group. The suit was filed by the Adani Group following a 2017 article by the journalist which accused the Narendra Modi government of tweaking rules related to special economic zones which benefitted the group financially. 

A former editorial consultant of the Economic and Political Weekly, Gautam Navlakha continued to be targeted by the NIA for his supposed involvement in the Bhima Koregaon violence of 2018. The Bhima Koregaon case has been used to target widely regarded human rights activists, lawyers and intellectuals by linking them to the Maoist movement. 

While the BJP government at the centre and in states went after journalists, non-BJP state governments too acted against journalists. Arnab Goswami, editor in chief of Republic TV, a news channel known to be close to the BJP was arrested by the Maharashtra Police on charges of abetment to suicide. An alliance of non-BJP Parties is in power in Maharashtra. Goswami was also investigated for inciting communal tension on Republic TV. 

Another colonial era law, the Official Secrets Act was used to arrest freelance journalist Rajeev Sharma in September 2020 for allegedly passing sensitive information to Chinese intelligence. 

Overall, the year 2020-2021 was a dangerous one for Indian journalists who were frequently targeted by the government through a range of legal provisions. Journalists remained unsafe everywhere- whether on the streets while reporting, or inside police stations in Uttar Pradesh and Delhi where they were assaulted and mistreated. In cases where the law could have come to the aid of journalists, as in the case of the three journalists – including one woman – from the Caravan, who were attacked by a Delhi mob while reporting on communal tensions – the police dragged their feet in filing FIRs. 

In the Maldives, blasphemy laws have been used to  intimidate and penalise bloggers and dissenting voices. The law prohibits public statements that are contrary to Islam and violators face penalties ranging from two to five years in prison or house arrest. Impunity reigns and justice is still elusive for the murder of blogger Yameen Rashid in April 2017.  Rasheed was active in campaigning over the disappearance of Ahmed Rilwan in August 2014. The government continued with the dissolution of the Maldivian Democratic Network in 2019, after accusations that the organisation insulted Prophet Mohammed in a report published in 2016, which was later retracted.

The tourism dependant country has tried several measures to encourage tourists to visit, despite the Covid-19 pandemic, including offering vaccinations and vacations for visiting tourists. From January 2021, the government cited the pandemic to curb any protests by the opposition and arrested oppostion leaders for alleged violation of the Freedom of Peaceful Assembly Act. The protestors were demanding more information on the vaccines donated by the government of India. 

In November 2020, the Maldives Parliament rejected amendments to the Freedom of Peaceful Assembly Act, which would allow protests in capital Malé without  prior permission. In February 2021, the Maldives Police attacked a Channel 13 camera operator and harassed the channel’s chief operating officer and station deputy in two separate incidents during opposition-led protests in Malé.

In March 2021, the Maldives National Defense Force (MNDF) issued an advisory to warn against sharing any reports or documents on the controversial Uthuru Thila Falhu (UTF) Harbor Development Project agreement with India, which had drawn protests from citizens over whether it amounted to a foreign base. The MNDF advisory warned against any news that would ‘hinder Maldives’ relationships with neighboring countries.’

Nepal’s proposed Information Technology Bill empowers the government to arbitrarily censor content online, including on social media, and punish offenders with imprisonment and a fine. Along with the proposed Media Council Bill, Mass Communications Bill, the new bills would significantly affect media freedom in Nepal. The bills are being considered by Nepal’s Parliament. The Electronic Transaction Act has been used to target journalists, especially those who went online with their criticism of the government during the pandemic. 

In Pakistan, journalists continue to operate in a dangerous environment. The Pakistan Electronic Crimes Act (PECA) passed in 2016 has been criticised for stifling free speech. The act criminalises speech on the grounds of blasphemy and also speech critical of state institutions. Social media activity is also under the purview of PECA. FIRs were lodged against journalists for posting ‘negative propaganda’ against the Army and state institutions and for ‘objectionable material’ on social media. 

Under the Act, authorities can block or remove online content and file charges under criminal defamation. In the month of September 2020 alone, three Pakistani journalists were charged with sedition on the PECA law. The newspaper Dawn remarked in an editorial, “It is the most sinister cybercrime legislation in the country as it goes beyond just computer-related crimes and gives authorities the licence to criminalise, restrict and prosecute free speech. Not only does it restrict freedom of expression online, it is now increasingly being used to attempt to jail journalists.”

In November 2020, the government notified the the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2020 under the PECA law. The rules make it an offense to intimidate or harm the reputation of government officials or induce hatred or contempt for the federal or provincial governments. The rules also incorporate Pakistan’s blasphemy laws and impose stringent content regulation guidelines. Essentially meant to censor online content, the rules apply to not just content producers but also social media companies and internet service providers. It affects critics of the government, opposition parties, human rights defenders and journalists.

Pakistan’s journalists also face action from the Anti-Terrorism Act and several sections of the Pakistan Penal Code, and defamation laws.

Sri Lanka amended its Press Council Law to include the regulation of electronic and new media. Sri Lanka’s Criminal Investigation Department (CID) was used to interrogate and summon journalists. It was also used to target the well-known journalist Dharisha Bastians, The Prevention of Terrorism Act  (PTA) was invoked to arrest Murugupillai Kokulathasan a Tamil journalist for allegedly posting pictures of the LTTE leader Prabhakaran on his Facebook page. The incident is a sign of the lasting impression of Sri Lanka’s civil war which ended more than a decade ago, but continues to affect civil liberties in the country . The PTA has been repeatedly used to detain, arrest, assault and harass journalists and activists.

Across the region, journalists and their associations and unions have mounted spirited resistance to the onslaught of what amounts to “lawfare” against the media. From legal challenges filed in courts, to advocacy and street protests, journalists have attempted to push for the repeal archaic and draconian colonial era laws, as well as intervene before more arbitrary bills are enacted as laws. This struggle is crucial, because when the media is harassed, squashed and intimidated “legally”, press freedom is gravely threatened.