The Forum for Human Rights, a group of concerned citizens led by Justice (retd.) Madan Lokur and Radha Kumar, documented the human rights violations in the eleven months of the shutdown in Kashmir following the abrogation of Art 370 on Aug 5, 2019.
The report observed that the ‘local media has been one of the worst sufferers. Journalists have been harassed and even had draconian charges slapped on them, for example under the UAPA. Their content, readership and revenues have suffered such a sharp decline that dozens of journalists have lost their jobs. The new media policy, which introduces censorship by the Directorate of Information and Public Relations (DIPR) in coordination with security agencies, is a death blow to the freedom of the press and the freedom of expression.
The following is an excerpt:
IMPACT ON THE MEDIA
The Jammu and Kashmir media were among the first to bear the brunt of the August 4, 2019 lockdown. With all communications snapped and Section 144 imposed across the state, newspapers did not publish for two months. When they did restart publication, said an independent journalist, “Pre-abrogation (of Article 370) we could write our stories with full dissent. The media platforms were also publishing their editorials with full dissent. That is not the case anymore.” (Questionnaire response, Pulwama).
A reader commented: “The media has suffered tremendously in Kashmir after the end of Article 370 and 35-A. The policy after August 5 (2019) was to foster the “normalcy narrative”. The long-term motive is to censor the media and restrain it from advancing an opinion/narrative which run counter to Indian claims. As such, the daily newspapers in Kashmir have become a mouthpiece of the government. Editorials and Op-eds in leading dailies run health, education, philosophical debates and international news – things that are unconnected with the ground situation. No one has been allowed to situate the removal of autonomy with the implications it has on the ground unless the changes are portrayed in a positive light. A body without a soul. This is what the media and its infrastructure are left with, post-August.” (Questionnaire response, research scholar).
Apart from both direct and indirect intimidation of editors and proprietors, curbs on movement and restriction to 2G services severely restricted information flow. According to a freelance journalist from Kulgam, “First we were denied curfew passes and when someone somehow got it, his movement was restricted. At times the internet is banned on the same day as we have to submit our story on which we have spent days and nights. Sometimes we film videos of great importance but can’t upload because of reduced net speed. Higher quality pictures suffer.” The impact on their readership was considerable, she added: “there is a relationship of mutual symbiosis between our readers and us. Our readers are our source of income. We provide them factual and detailed information. They trust us. They pay us. Our readers are gradually losing their interest in us because we fail to get them updated (on events and processes). Because the internet fails us, we can’t reach our readers on time. Our subscribers quit us.” (Questionnaire response).
1 The new media policy and media scene
A full-fledged mechanism, with its many aspects worked out in careful detail, designed to very closely monitor – or police – the media, can be said to be the first major policy intervention of the Jammu and Kashmir administration after New Delhi brought the former state directly under its charge on August 5, 2019 by converting it into two Union Territories.
It is in this atmosphere that the MHA’s “revised media policy” for Jammu and Kashmir, which shall be valid for a period of five years unless changed earlier, was introduced. The media is unlikely to have missed seeing the intention of the government and the direction in which it was seeking to move.
The policy is not coy. It states without mincing words:“Jammu and Kashmir has significant law and order and security considerations. It has been fighting a proxy war supported and abetted from across the border….it is extremely important that the efforts of anti-social and anti-national elements to disturb the peace are thwarted. In order to ensure the above, it shall be made incumbent that before the empanelment of newspapers/news portals for release of advertisements by government, the antecedents of the paper/news portal as well as that of the publishers/editors/, key personnel are gone into. …”
Then the details of day-to-day supervision of the media are delineated in the following terms: “DIPR [The Directorate of Information and Public Relations] shall examine the content of the print, electronic and other forms of media for fake news, plagiarism, and unethical or anti-national activities. Any individual or group indulging in fake news, unethical or anti-national activities or in plagiarism shall be de-empanelled besides being proceeded against under the law… Any fake news or any news inciting hatred or disturbing communal harmony shall be proceeded against under IPC/cyber laws.”
And further, “A suitable mechanism with specific ToRs [Terms of Reference] shall be set up by the DIPR for monitoring the above and ensuring adherence to the guidelines… With respect to all such matters (as) may involve fake news or news with anti-social, communal or anti-national content, the implementing agency, viz DIPR will also device (sic) a suitable coordination and information-sharing mechanism with the security agencies.”
It is not difficult to see that there are two distinct aspects – both egregious and injurious to democracy – of policing the media evident in the above, in addition to checking the antecedents of a newspaper’s publishers and other senior personnel before empanelment for receiving a share of the government’s advertising spend. The first is that the bureaucracy is under instruction to sit in judgment over what constitutes anti-social and anti-national news, and then act as censors, though that particular expression is not used.
The second is that the DIPR must devise a suitable “coordination and information-sharing mechanism with the security agencies.” Here the department of information practically collapses into the domain of the security agencies, meaning the intelligence services, the police, the paramilitary forces and the army. In such a coordination mechanism, it is clear who will be in the lead role – the DIPR, or security personnel. This is the kind of format operated by ISPR in Pakistan or can be thought of being successful in one-party states such as China or North Korea.
(Note: In supersession of all previous orders, the UT of Jammu and Kashmir issued a Revised Media Policy of the Information and Public Relations Department vide Order General Administration Department OM No. GDC-89/CM/2020 dated May 12, 2020. The policy approval came under Administrative Council Decision No. 61/8/2020 on April 29, 2020. The 50-page long policy is set out in Kashmir Life, June 11, 2020. Quotations from it below are from this source).
The Kashmir valley has about a dozen English-language dailies and around 15 Urdu dailies. Perhaps each of these is able to meet the circulation criterion for daily newspapers for purposes of empanelment to be eligible for government advertising, as laid down in the new Media Policy.
The minimum circulation requirement for English dailies is pegged at 2,000 copies, and for other languages (in the valley chiefly Urdu, though Jammu has Hindi and Dogri as well) 500 copies. The ask is slightly more for bi-weekly/weekly, fortnightly and monthly offerings.
On the whole, it may be safe to presume that the government has designed its empanelment requirement for circulation well within marks already achieved by the papers. This points to its willingness to keep the newspaper owners flush with funds derived from the government’s ad spend, although “under the New Media Strategy, the department now proposes to increasingly look toward leveraging electronic and online media to widen the scope and import of information dissemination.”
In the main, news establishments in Jammu and Kashmir are unlikely to turn down such a plum proposal. All that is required of them is to pack their wares with the editorial matter offered by the government, and eschew anything the government is likely to frown upon. Through a not-so-disguised ‘stick-and-carrot’ policy, the Jammu and Kashmir administration has set down the template for the open subversion of journalism in Jammu and Kashmir, especially in the Kashmir valley.
The charges against journalists such as Masrat Zahra and Gowher Geelani (referred to in the section on civilian security) have evidently been taken as appropriate lessons by Jammu and Kashmir’s newspaper owners, as a contemporary news report suggests: “The local newspapers have been playing it safe since August 5, mostly avoiding any independent coverage of the aftermath of the clampdown and the communications blockade, fearing reprisal from the government agencies… Several local English dailies have avoided publishing any editorials and regular columns on the ongoing situation in the Valley.” (Report by Majid Maqbool, ‘The Wire’, September 17, 2019).
The above report wryly notes that while these newspapers carry “no informed critique/opinion pieces”, the government’s advertisement “blitzkrieg” promises “new dawns” even as “the siege and the communications gag is yet to be lifted.”
People in the valley have begun to migrate from newspapers to the radio, the report informs us. “People are listening to the radio as they did during the 1990s [a reference to the first militancy and its aftermath in Kashmir] when there was no internet and cable television network”, it says, quoting a businessman of Sopore in North Kashmir. Evidently, “BBC London and VOA” are the sought-after radio stations. These bring “authentic news of the current situation in the region, and what the world is saying about the scrapping of Article 370 or the bifurcation of the state.” Ominously, in contrast, “The Indian media is not a trusted source of news. It is repeating what their government says about what is happening here.”
2 Internet freedom, internet speed, two Supreme Court judgments
Two judgments of the Supreme Court – Anuradha Bhasin, delivered on January 10, 2020, and Foundation of Media Professionals, pronounced on May 11, 2020, are key judicial delineations on the subject of the freedom of expression, media freedoms, whether or not the right to access the internet is a human right, and whether or not the right to have high speed internet (in India’s case the 4G speed, currently the maximum speed for ordinary transactions available in the country, including in Jammu and Kashmir before the lockdown effected in August 2019) is a fundamental right/human right. Justice N. V. Ramana led the Bench in both cases and authored the two judgments.
(Note: Anuradha Bhasin v Union of India, AIR 2020 SC 1308; Foundation of Media Professionals v UT of Jammu and Kashmir, Writ Petition No. 10817 of 2020, judgement carried on indiankanoon.org/doc/123992151/).
He cited constitutional principles, and case law, but permitted the government’s contention that cited serious security considerations in light of Kashmir’s specific circumstances in relation to terrorism, to prevail above every other consideration, without submitting the government’s case to scrutiny, which it deserved in light of the case presented by the petitioners.
The nub of both judgments turned on the impoverished logic of security concerns to prove which numbers were thrown by the respondents of deaths and injuries and violent incidents over extended periods of time that look to be far from comparable.
Both judgments cited the state’s right to bring reasonable restrictions – Article 19(2) of the Constitution of India – to the freedom of expression available through Article 19(1). They also emphasized the need for proportionality in the state’s actions. Yet, the state came away smiling.
From the media perspective, these judgments offer not the slightest relief. This is borne out by the feedback of respondents to the Forum’s questionnaires cited above and in various sections of this report.
The most glaring defect in the approach of the Bench is to readily accept the state’s version. The most primary of these is the most conspicuous. To find out the extent of the freedom under which the media operates in Jammu and Kashmir, especially the valley, all that is needed is to send for a few copies of the prominent dailies published in the former state. These would have revealed straightaway that little else is being carried these days, besides official handouts. This would have punctured the state’s case that the media was facing no problems in its operations that were anything out of the ordinary.
Regrettably, the Supreme Court appears to have lost an opportunity to further develop the jurisprudence on the question of access to the Internet being a fundamental right (if not a human right), with the question of the speed (2G or 4G) at which it is available to the daily user being of paramount consideration, in running media operations specially.
Decades ago, a bicycle and a typewriter or a simple camera was all that newspersons needed. Today the work processes – produced by the march of technology – are such that quality media operations are hard to conceive without high speed data transfers. It is to be hoped that the day is not far when the judgments referred to above will be reviewed and improved upon. For a country claiming to be a democracy, this is critical.
In both the cases brought as writ petitions before the Supreme Court, government representatives presented arguments that terrorists can easily exploit high-speed internet because this permits two-way communication. This is the sole basis on which the continued banning of 4G was sought to be sustained. The top court appeared to accept this logic avidly. It might as well then accept that the movement of planes or trains or motor vehicles should be eliminated or restricted in society, especially in Jammu and Kashmir, since terrorists are also known to use these modern devices.
In Anuradha Bhasin, the top court observed in paragraph 27 of its order, “[In this context], we need to note that the internet is also a very important tool for trade and commerce. There is no doubt that there are certain trades which are completely dependent on the internet…”.
In the very next paragraph, it is therefore not a little surprising to see the court’s language: “None of the (petitioners’) counsels have argued for declaring the right to access the internet as a fundamental right.” (Emphasis supplied) This became the ground for the Supreme Court to not express a view on the matter.
Instead of pursuing such a course of self-denial, although the communications lockdown and internet deprivation hampering the media were at the heart of the case being brought, the Bench hearing so crucial a matter could conceivably have seized on the opportunity to expand the jurisprudence in this sphere. This might have been the making of case law apt to be cited around the world.
Again, in paragraph 6 of judgement on the Foundation of Media Professionals’ petition, the Bench took up an important question raised by the petitioner, noting, “Lastly, Respondent No. 1 has failed to provide any rational nexus between the restriction of internet speed and national security (and) that since the introduction of the internet in the UT of J&K, the number of incidents relating to terrorism in the region have actually reduced.” (Emphasis supplied).
In spite of flagging this point, the Bench takes no note of it in the final order, which seems something of an anti-climax. It merely calls for the constitution of a special committee to be headed by the Union Home Secretary, with the UT’s Chief Secretary on it. This committee is directed to look into the points made by both sides in the case.
It should occasion little surprise that, given the quality of the two crucial judgments in discussion – which go over the ground of media freedoms and the availability of 4G internet – the Jammu and Kashmir administration would have found itself in no way constrained in declaring a media policy that may seem better suited to dictatorial regimes.
1. Release all remaining political detainees who were taken into preventive detention on or after August 4, 2019. Strictly follow jurisprudence on the rights to bail and speedy trial. Repeal the PSA and any other preventive detention legislation, so that they cannot be misused against political opposition, or amend them to bring them in line with our constitutional ethos. Remove all restrictions on freedom of representation and expression. Strictly implement juvenile protection legislation in letter and in spirit. Release all detained juveniles and withdraw charges against them. Initiate enquiries followed by criminal and civil actions against personnel of police, armed forces and paramilitary forces found guilty of violation of child rights. Withdraw charges under the UAPA against journalists and activists.
2. Balance security considerations with public interest, giving utmost consideration to humanitarian concerns involving the population and eliminating hindrances to the welfare and well-being of the people. Curb the application of Section 144 to only those instances in which there is clear and present danger. Ensure that District Magistrates strictly follow judicial guidelines restricting the use of Section 144. Restore in practice the humanitarian guidelines to be followed when conducting Cordon and Search Operations (CASO), to prevent civilian deaths, injuries or any other damage or loss, and adequately compensate innocent citizens whose houses have been destroyed in Cordon and Search Operations.
3. Ensure that police and paramilitary forces at checkpoints allow smooth passage for medical personnel and patients. Where patients lack transport to hospital, provide aid by making vehicles available. Hold police and paramilitary personnel who harass civilians at checkpoints accountable and initiate appropriate disciplinary action.
4. Restore 4G internet and mobile services in toto. Noting that Jammu and Kashmir has below average access of children to online facilities (see section on children and youth, make additional efforts to provide access for such children.
5. Reinstate all the former state’s statutory oversight bodies, especially those monitoring human rights, such as the Jammu and Kashmir Human Rights Commission and the Jammu and Kashmir Women and Child Rights Commission.
6. Compensate local businesses that were forced to shut down due to the government lockdown between August 2019 and March 2020 and ensure that they are given the government aid they require to the fullest extent possible.
7. Rollback the new media policy and encourage all shades of opinion to be freely and peacefully expressed, as the laws apply in every part of the Indian Union.
The full report can be downloaded here:
The Forum for Human Rights in Jammu and Kashmir comprises an informal group of concerned citizens who believe that, in the prevailing situation in the former state, an independent initiative is required so that continuing human rights violations do not go unnoticed.
Its Co-Chairs are :
Justice Madan B. Lokur, former judge of the Supreme Court of India
Radha Kumar, former member, Group of Interlocutors for Jammu and Kashmir
and its members are:
Justice Ruma Pal, former judge of the Supreme Court of India
Justice AP Shah, former Chief Justice of the Madras, and Delhi, High Court
Justice Bilal Nazki, former Chief Justice of the Orissa High Court
Justice Hasnain Masoodi, former judge of the Jammu and Kashmir High Court
Justice Anjana Prakash, former judge of the Patna High Court
Gopal Pillai, former Home Secretary, Government of India
Nirupama Rao, former Foreign Secretary, Government of India
Probir Sen, former Secretary-General, National Human Rights Commission
Amitabha Pande, former Secretary, Inter-State Council, Government of India
Moosa Raza, former Chief Secretary, Government of Jammu and Kashmir
Hindal Haidar Tyabji, former Chief Secretary, Government of Jammu and Kashmir
Shantha Sinha, former chairperson, National Commission for the Protection of
Lieutenant-General H S Panag (retd)
Major-General Ashok Mehta (retd)
Air Vice-Marshal Kapil Kak (retd)
RD Sharma, former Vice Chancellor of Jammu University
Enakshi Ganguly, Co-founder and former Co-director, HAQ Centre for Child Rights
Ramachandra Guha, writer and historian
Anand Sahay, columnist