Guest Post: Article 19 and Farmers Protest

“Democracy thrives on listening, arguing and even dissent.”– Pranab Mukherjee

The year had been exceptionally monumental for India owing to the widespread CAA- NRC protest, the migrant exodus, Indo- China clashes and the construction of the Ram Temple in Ayodhya. Towards the end of the year, India witnessed another historical event- the farmers protest, which has been called the largest protest in history. It is  a multi faith, multi caste, multi-generational movement being led by more than one lakh farmers from Northern India.

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Freedom for our Farmers: Farmers Laws- A Step in the Right Direction

Freedom for our Farmers: Farmers Laws- A Step in the Right Direction
Farmers Protesting at the borders of Delhi – 2020.

Everywhere in the world, citizens aspire freedom to live, move, come-together and to trade. The great revolutionary document called the Constitution of India is built on the promise of freedom to Indian citizens. Unfortunately, the State, since 1950s, has used coercive measures to curtail freedom. In 2020, the Central government has enacted two new Laws and one Amendment Act for our farmers. The nation has witnessed (and is still witnessing) widespread protests by the farmers across borders of the National Capital Territory and elsewhere. The protestors have called these laws as ‘black laws’ and they demanding the Indian State to take back these laws. In this blogpost, I will not be discussing the protestors’ rights or the process through which these contentious laws were passed. Rather, I will be discussing the context of these new laws- through the lens of Constitution of India and Freedom which our farmers have aspired for since the beginning.

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Guest post: Trial by Media: Violation of Right to Reputation?

[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog. This article is a part of series where the author analyses Article 19 vis-a-vis recent events.]

Introduction- What is a Media Trial?

In India, Media is regarded as the fourth pillar of democracy. The media provides the public with information by its reporting and commentary on the ongoing social and public events in the society. Media acts as a watchdog that helps create awareness and aids in formation of opinion for the laymen and helps in moulding their perception of an event. Media Trial means the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt irrespective of whatever is the verdict in the court of law. With the advent of technology in recent times, media’s presence has been ubiquitous. Media trials occur when the media houses start acting as “public courts” or “Janta Adalat” and start interfering with the proceedings of a case. Media may subtly or overtly give their verdict on a case, ignoring the crucial difference between an “accused” and a “convict” thereby disregarding the principle “innocent until proven guilty.”

Freedom of press and Indian Constitution

Freedom of press as a standalone right doesn’t exist under the Indian Constitution. However, it is implicit under Article 19 (1) (a) of the Indian Constitution which provides for freedom of speech and expression for all citizens of India. This fundamental right is enshrined in the Constitution to protect the democratic values of the country. Freedom of speech and expression freedom to express in oral or writing, one’s thoughts, opinions, ideas and beliefs. Freedom of press isn’t exclusively mentioned in the Constitution as it was made clear by Dr. B.R. Ambedkar during the Constituent Assembly debates that no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as their right of expression was concerned. 

In the case of  Romesh Thappar vs State of Madras, the Supreme Court held  that freedom of speech and that of the press lay at the foundation of a democratic society, and without free political discussions, no public education is possible, which is important for the proper functioning of the government. It was observed by Justice Patanjali Sastri in the case that the freedom of speech and expression includes propagation of ideas, and that freedom was ensured by the freedom of circulation. The Supreme Court, through various cases has made it clear that right to speech and expression clearly includes the right to publish and circulate one’s ideas, beliefs and opinions through any mode of publication (it has been discussed on this blog extensively – check here). 

In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar , the Supreme Court while deciding upon the scope of the freedom of press, recognized it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”.

Right to reputation and Media Trials

Freedom of speech isn’t a sacrosanct, absolute right and is subject to reasonable restrictions. These restrictions can be for varied reasons including the grounds of right to privacy, right to reputation, contempt of court etc. Every person has the fundamental right to reputation in the same manner as they have the right to freedom of speech. Article 21 of the Indian Constitution includes the right of a person to live with dignity which also comprises the right to reputation.

Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protect the right of reputation of an individual by stating that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 19 of ICCPR further emphasises this right by stating that everyone shall have the right to freedom of expression but it shall be subject to restrictions such as- respect for the right to reputation of someone. The UDHR is only a persuasive and not a legally binding instrument but India has ratified ICCPR and thus, is bound to follow the Covenant. However, no express and consequent legislation has been made in India with this regard. 

Media derives its right of publication from Article 19 (1) (a) of the Indian Constitution but when a statement harms the reputation of a person it is said to be defamation. In India, defamation is considered both a civil wrong (tort) as well as a criminal wrong (Section 499 of the Indian Penal Code). Every criminal administration, across all democratic countries, also      ensures that an accused is given a fair trial. Right to fair trial in a criminal prosecution is an implied right under Article 21 of the Indian Constitution – as a fundamental right. A media trial jeopardises that right to fair trial of the accused, forgoing the principle of natural justice as well as also violating their right to reputation. 

In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, The Apex Court stated that, “―the impact of television and newspaper coverage on a person‘s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”

The justice delivery system in India being so excruciatingly slow, by the time the court pronounces a verdict, the media already disparages the image of not only the accused but also their family. There have been many instances where the media has passed its own verdict before the Court itself. In the infamous Jessica Lal case, when renowned lawyer Ram Jethmalani decided to appear on behalf of the accused his morality was questioned and one of the senior editors of a news channel branded him as trying to “defend the indefensible” thereby already declaring the accused guilty. 

Conclusion

Media has increasingly become an important part of everyone’s lives. It acts as a watchdog that strives to keep the public informed, aware and vigilant. However, at times the media tries to sensationalize the news in order to grab the attention of the viewers. With the advent of 24 hour news coverage, media houses have delved into sensationalism rather than sensibility. After the augment of Television Rating Points (TRP), media houses try to attract a bigger audience and hence resort to whatever means through which they can achieve high ratings. This can lead to the media overstepping its limit and acting as a judicial institution of its own. It is difficult for the general public to not get swayed by an opinion or narrative that is being pushed relentlessly on them. Such extensive coverage may endanger the interests of the parties involved especially if a matter is sub judice

Under the existing law of Contempt of Courts Act 1971, pre-trial proceedings  are exempt from falling under the ambit of contempt. Publishing material with respect to the parties involved can affect their rights to a fair trial. Due to such lacuna, the press feels empowered to write and circulate excessive or at times, distorted facts. 

The “Press Council of India” (PCI) which is a statutory body is concerned with developing and maintaining the standards of print media. The PCI has very limited powers under the Press Council of India Act 1978. The Act only refers to print media and hasn’t been updated to also include electronic media as well. Under the Act, the PCI can only “warn, admonish or censure the newspaper, the news agency, the editor or the journalist.” A mere warning is not enough to curb a media trial and the perils that arise because of it. The PCI should be given a stronger role to ensure that the media aren’t misusing their freedom of speech. 

The trial by media has gained a renewed debate after the “Disha Ravi toolkit case.” The High Court of Delhi admonished certain Media houses to ensure that proper editorial control is exercised while disseminating information to ensure investigation is not hampered. The Media Houses were criticised for its sensationalized reporting. Similarly, after Bollywood actor Sushant Singh Rajput’s death, the accused Rhea Chakraborty had to file a plea against the unjust media trial meted towards her. Chakraborty filed an affidavit stating that ‘the constant sensationalization of the case’ had caused her ‘extreme trauma’ and an ‘infringement on her privacy.’

Thus, Media trial has become a serious issue in contemporary times. The dangers arising out of such misreporting should be addressed and if needed, the government should take concrete steps to prevent it from happening and impose penalties on media houses that partake in the same. The freedom of press is an inalienable right in a democracy but at the same time, this freedom also exposes its loopholes. Therefore, it is time that the government takes active steps in ensuring a more conscious, sensible and accountable journalism. More importantly, the media should be conscious enough to report neutrally and understand that they cannot over step their freedom of press. 

Freedom of circulation and propagation of Ideas

Propagation of ideas and circulation of information is part and parcel of democracy and it is essential, as the Supreme Court held in Sakal Papers v. Union of India, for the “proper functioning of the processes of democracy”. In this article, the author will look into Article 19(1)(a) with respect to freedom of circulation and propagation of ideas as a Fundamental Right under the Indian Constitution. The availability of various ideas in the marketplace without any interference from the State strengthens the foundations of democracy. People can only have informed debates on the issue of “great importance” when the information is readily available through various portals to the public. With this context, the author will analyse two important judgments of the Supreme Court on this point of law.

Locating the Right to Freedom of Circulation and propagation of Ideas

In Sakal Papers case, the basic issue was constitutionality of Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page) Order, 1960. The objective of these laws was to “regulate the prices charged for newspapers in relation to their pages” which was ostensibly done to “prevent unfair competition” and give “fairer opportunities” to all the other newspapers. The petitioners contended that through these laws the selling price of their newspapers will increase for their readers, if they want to retain the same number of pages as they are currently distributing, which will lead to an adverse effect on their circulation. Otherwise, if not to increase the selling price, the newspapers will have to reduce the number of pages which will infringe their right to circulate and propagate ideas. The five-judges bench of the Supreme Court noted in Paragraph 26 that,

26. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise as many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every newspaper was free to charge whatever price it chose, and thus had a right unhampered by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged.

The Supreme Court explicitly held in 1950 in the case of Brij Bhushan v. The State of Delhi that there is no mention of freedom of press in the Constitution, but it falls within the ambit of Article 19(1)(a)—that is freedom of speech and expression. In the Sakal Papers case, the Supreme Court while focussing on this Right under the Indian Constitution, held that “The right to propagate one’s ideas is inherent in the conception of freedom of speech and expression.” Having said this, the Court then held two other important and allied rights, that are, the propagation of ideas can be done either by word of mouth or by writing and the volume of the content published. A citizen has a right to publish whatever she pleases (matter does not matter, unless it lies within the ambit of clause 2 of Article 19) and in any amount she pleases. Any restraint placed on these rights is a violation of Article 19(1)(a). The Order and the Act of the government was held unconstitutional by the Court as they infringe the press’ right to publish their ideas and the volume of the matter they are publishing. The court said in paragraph 27 that,

It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspapers but for expressly cutting down the volume of circulation of some newspapers by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspapers.”

Furthermore, the Courts must ensure that the fundamental rights are not to be interpreted narrowly and they must not be “cut down by too astute or too restricted an approach” (see LIC v. Manubhai D Shah). In Manubhai D. Shah, the Court held that a citizen has a right to propagate an idea through “the print media or any other communication channel example the radio and the television”. Circulation of ideas is very important for a healthy democracy as it enables the citizens to gather information and build opinions. The Court held in paragraph 8 that, “freedom to air one’s views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.

In Manubhai D. Shah, the Court while building upon the freedom to propagate ideas held that a citizen also has a right to reply/rebut to a criticism levelled against the view propagated by him. Hence, any restriction on speech and expression apart from Article 19(2) on a citizen’s right is a threat to democracy. Further, the restrictions must not be interpreted so widely that it infringes upon the citizens’ right and dilutes the whole purpose.

Conclusion

Authoritarian governments use various penal laws like the draconian UAPA, Sedition (Section 124A of the Indian Penal Code), National Security Act etc., to infringe citizens freedom of speech and expression under the garb of ‘reasonable restrictions. These penal laws have stringent punishments and bail conditions that are restrictive which impedes the courts from granting bail. Although the courts have championed civil liberties despite such stringent provisions for bail, the courts have looked into the accusations more diligently and judicially. The recent ‘toolkit’ incident is a classic example to portray the government’s use of sedition laws to shut dissent and deter informed citizens from critiquing government’s policy.

Read more on democratic backsliding in India here. Here, the author discussed why there must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny especially under the present government.

Guest Post: The PM CARES Fund: A Political Propaganda or a Genuine Attempt?

[This is a guest post by Charvi Devprakash]

Introduction

The Prime Minister of India tweeted, “It is my appeal to my fellow Indians, kindly contribute to the PM-CARES Fund” asking all of the citizens to do their part in creating a healthier India by contributing to the newly founded PM-CARES Fund (Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund). Within a week, reports stated that the fund had managed to collect 65 billion rupees. And now, it is claimed that the fund has crossed the 100 billion dollars mark. 

Though this meant a huge achievement for the country as a whole, as aforementioned many of them began to question why there was another fund created when there already existed the Prime Minister’s National Relief Fund (PMNRF). While some questioned its constitutional validity, others mocked the opaqueness of the fund. While on one hand where some of the citizens filed cases of Right to Information against the Prime Minister, on the other, some demanded the need for the fund to be scrutinized by the Comptroller and Auditor General of India (“CAG”) as CAG is an independent body, free of the government’s influence. While the government fought the RTI petitions by calling the fund ‘not a public authority’, some companies wondered how the PM CARES Fund came under Corporate Social Responsibility (CSR), but not the CM’s COVID Fund. 

Is the PM CARES Fund constitutionally valid?

Recently, in the case of Manohar Lal Sharma v. Narender Damodaran Modi & Ors, the Supreme Court was to hear public interest litigation (“PIL”) filed by one Manohar Lal Sharma on the matter of the constitutional validity of the PM CARES Fund. A bench comprising Chief Justice S A Bobde and Justices L Nageswara Rao and MM Shantanagoudar heard the PIL against the setting up of the PM CARES Fund through video-conferencing. The SC straight away dismissed this petition, thereby indicating that the PM CARES Fund was created in accordance with the constitutional principles. The petition intended to quash down the Fund as it is claimed to have not been formed under the constitutional guidelines as mentioned under Article 266 and 267 of the Constitution of India, 1950 that deal with the Consolidated and Contingency Fund of India respectively. 

However, here are some of the reasons how the constitutional validity of the fund could be challenged on other grounds as well. One could assail the Fund by focusing on the nature of the Fund and the requirement of the auditing to be done by the CAG as it is supposed to be a public fund and not private. Time and again, successive Central Governments have created funds like the PMNRF and PM CARES Fund under the umbrella of ‘private funds’, thereby encroaching upon and depriving the Indian citizens’ Right to Information. The petition could have also challenged the validity of the fund by bringing it within the bracket of the violation of Article 14 of the Constitution of India as the PM CARES Fund demanded or rather received preferential treatment than the other NGOs or Trusts, that haven’t enjoyed such support in the past, pertaining to the exemptions received under Foreign Contribution Regulation Act, 2010 (FCRA).

The need for Transparency

India being a democracy, bestows upon all its citizens the Right to Information under Article 19 (1) of the Constitution. The right to seek information and accountability from the Government strengthens and empowers the citizens. This freedom ensures that there is a good, transparent, accountable and responsive Government. Today, due to the various decisions taken by the Government, RTI is recognised as a fundamental tool to promote openness and responsibility within the Government. It puts people in a position of entitlement and power. 

In the case of SP Gupta v. Union of India, it was held that the people had the right to know about every public act and public transaction undertaken by public functionaries. Furthermore, in the case of People’s Union for Civil Liberties v. Union of India, the judgement of SP Gupta was extended to making Right to Information an indispensable human right necessary for making governance transparent and accountable. Adding on, in the case of State of UP v. Raj Narain, Justice Mathew expressed, 

“It is not in the interest of the public to cover with a veil of secrecy the common routine business the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.” 

Where the money is being utilised? When the taxpayers diligently and responsibly donate to a particular government body, the citizens have the right to know how the due amount is being utilized. Similarly, even in the present scenario, the citizens have a right to know, to what use is the money collected being put to, irrespective of the amount donated by each individual. This is precisely where the problem arose in the PM CARES Fund: the lack of transparency

Issue of representation and domination of one political party: The ruling party was quick enough to make a statement that the CAG will not be auditing this fund and that it will be those independent auditors who are appointed by the trust that would audit the funds. However, the committee members or the decision-makers of the fund are unrepresentative. Unlike the PMNRF that comprises the Prime Minister, President and the leader of the Opposition, PM CARES Fund only comprises the ruling party members. While the Prime Minister, in his official capacity, is the ex-officio chair of the Fund, he also has the power to nominate three members as ‘ex-officio trustees’, which in this case are the Finance Minister, Defence Minister and the Minister of Home Affairs, who all are from the same ruling party, thereby making the Fund/trust completely unaccountable and unrepresentative. Despite there not being a legal mandate for the Leader of the Opposition to be a committee member in any of these funds, it has been an unwritten ‘convention’ from centuries across countries to have the opposition party members in such funds in order to encourage opposing points of view. This makes the PM CARES Fund unrepresentative. 

The requirement of auditing by CAG: A fund this unrepresentative also makes the appointment of the independent auditors biased and unfair, which once again calls for an emphasis on CAG to audit this Fund. Although the auditors have to abide by certain set legal standards, the appointment of these auditors will be biased due to the unrepresentative nature of the committee, which might give the ruling party an upper hand in making decisions that are not completely justifiable or transparent. The same can be avoided if the committee is more representative with opposing views. The PMO has also refused to make the relevant documents of the Fund public as it does not come under the ambit of a public fund’, which means it is not controlled or substantially financed by the government and so does not come under the RTI Act. It also means that it cannot be scrutinized by government auditors like the CAG. However, the nomination of the committee members of the Fund speaks otherwise, indicating that the Fund is under complete control of the Government. Therefore, all of these actions of the Government call for the pressing need for ‘Transparency’. As aforementioned, no information has been catered to the donors of this charitable fund, as the fund is considered a ‘private trust’. This called for several RTI petitions being filed against the PMO and the government. However, most of them have been dismissed by the courts and the rest have been quashed down by the trust.

The CSR conflict and Cooperative Federalism

Another issue arising out of this fund is the preferential treatment given to the PM CARES Fund over other state government funds in terms of corporate social responsibility. An intriguing aspect here is that companies cannot file their donations towards state COVID funds under their CSR, while they can only file their donations under CSR if it is towards the PM CARES Fund. Many have questioned the validity of this clause. PM CARES Fund is the only state-owned charitable fund to have been included under CSR by amending the Indian Companies Act. Despite announcing this on a later date, the application of the amendment was retrospective in nature, thereby making all the prior corporate donations eligible under CSR. 

However, this move by the government has its own repercussions. Once the PM CARES Fund was made eligible for CSR funding, many top businesses like the TATA and Reliance donated millions of rupees as donations. This meant that it could lead to a great financial crunch among many other NGOs who majorly depended on such corporate donations. In light of the same, the Rajasthan Government filed a suit questioning as to why only PM CARES and not state COVID funds were made eligible for CSR funding. The only response was that the Union Government barred CM’s Relief Fund to be entitled to CSR donations. This is a blatant violation of Article 14 as this clearly acts as Preferential treatment towards the Central Government’s fund. This might also be an attempt to destabilize the democratic governance founded on the constitutional principle of ‘cooperative federalism’ (The need for Cooperative Federalism was highlighted previously on this blog here).

Cooperative federalism is the existence of a flexible relationship between the Centre and the states where both parties work together in harmony on subjects that concern both. This particular move of the Union on the matter of PM CARES Fund has proven to go against this principle. As a democracy believing in cooperative federalism, it is of paramount importance for the Centre to treat the states as equals and consult them on subjects that are of national concern such as the pandemic. Many state governments in the country became the target of a huge financial crunch as they had neither received the State’s GST collections nor were the residents of those states donating to the CM’s Relief Fund, merely because one could avail the CSR benefit by donating to the PM CARES Fund. This move by the Union is highly condemnable as this was the time for the state governments to be more self-reliant, financially as well as decisively and less dependent on the Centre, but that didn’t seem to happen in this scenario. If cooperative federalism was adopted and respected in its truest sense, then the entire situation would have looked quite different, with more harmonious inter-state and Centre-State relations.   

Conclusion/Suggestions

Looking at all the analysis made above, it is safe to assume that the PM CARES Fund is not only opaque and arbitrary in nature, but also discriminatory. Many NGOs and State COVID funds are at stake due to the revised provision made available to the general public in light of corporate social responsibility. To resolve this issue, some of the plausible suggestions could be:

  1. This turn of events must be put under scrutiny for being violative of Article 14 – as it creates differential treatment of two different subjects which falls under the same class of subjects.
  2. Courts must encourage and allow the PILs and the RTI applications for better transparency. Strict scrutiny of this fund must be done so as to ensure that the public’s trust is restored. 
  3. There is a pressing need for more transparency in the functionality of the fund and hence needs to be made more representative by including members from the opposition and other independent sectors.
  4. Indian Companies Act must be further amended to give the state-relief funds the same position as PM CARES Fund.
  5. Since this is a public-funded initiative, PM CARES Fund needs to come under the ambit of ‘public fund’. 

Therefore, the acceptance of these suggestions will only strengthen the citizens’ belief in the judiciary and will prove the independence of the Judiciary from the Legislature and the Executive. Lastly, COVID-19, is a global pandemic, having taken millions of lives already. This is not a time to put into action the nasty political propagandas, but a time for the entire nation to stay united and fight the virus, democratically.

[The author would like to thank Chaitanya Singh and the team of Constitutional Renaissance Blog for their valuable suggestions and comments.]