On October 8, Justice Sanjay Dhar of the Jammu and Kashmir High Court delivered a judgement that was remarkable in its ordinariness: it restated the law, common sense and the basic tenets of – what was once – the world’s largest democracy.
The case he was called to adjudicate upon was a two-year-old story in the Times of India. The headline read: “Stone pelters in J&K now target tourists, four women injured.” It was ordinary journalism, but it led to a criminal case against the reporter for “making or publishing a statement or rumour creating fear or alarm”.
The freedom of the press, said Justice Dhar, could not be imperiled on “grounds that are unknown to law” and “reporting of events, which a journalist has bona fide reason to believe to be true, can never be an offence”.
Yet, this is what journalism in India has become: an offence against the state.
Hectored, threatened, beaten
Journalists in Kashmir bear the brunt of this belief, as they are hectored, threatened, beaten and imprisoned; it is state policy, explicitly stated, to discourage journalism that is “against the national interest”. In Uttar Pradesh, it is unstated but state policy nevertheless to file criminal cases against journalists who do their jobs when the government does not want them to. It was little wonder that earlier this year, India ranked 142 of 180 countries on a global press freedom index, behind countries such as Myanmar, South Sudan and Afghanistan.
In Uttar Pradesh, over the past year, journalists have faced criminal cases for reporting on things as prosaic as a derailed train to a protest; the spectre of arrest hangs over the executive editor of this website for reporting the failure of a government programme; another journalist has been in prison for 24 days over a tweet; and a day before Justice Dhar delivered his judgement, a journalist from Kerala and three others were arrested and charged with sedition and India’s now-notorious anti-terrorism law, the Unlawful Activities (Prevention) Act. The circumstances of their alleged crime were mired in ordinariness – they were headed to Hathras, which the Uttar Pradesh government has declared a site of international conspiracy, and they, the police said, were conspirators.
I mention journalism because its wellbeing is a test of democratic health (by that measure, of course, India is floundering, given the state of its largely sensation-seeking, government-loving media), but these outrages are not limited to journalism. They come thick and fast every day, as peace activists, professors, students and anyone opposed to the government and its Hindu-majoritarian narrative are questioned, interrogated, threatened or simply imprisoned without bail for investigations that never appear to end or are slapped with cases that may never stand the test of law.
As for the law, it is being reduced to, at best, a tool to be manipulated, or, at worst, little more than a joke. It has been corrupted by the government, the police and the courts beyond reasonable measure.
Last week, Stan Swamy, 83 and the oldest Indian to be charged under the UAPA, was arrested. A life-long advocate of Adivasi rights and bulwark against their oppression, Swamy is a Jesuit priest, who, a writer once said, “had made people his religion”. His arrest was the 16th in what has come to be known as the Bhima-Koregaon case, a vast, dubious enterprise of defamation and criminalisation that began as a supposed plot to kill the prime minister – an accusation never mentioned since – and degenerated into a vast conspiracy with no credible proof and no sign of trial.
Journalism as crime
In the blink of an eye, India has been dragged from flawed but functioning democracy with reasonably robust institutions to the doorstep of great-leader autocracy. Every disfigurement of the law leads to another, often greater in severity, straining the credulity of the justice system and pushing it further into disrepute and disrepair. Every corrupted precedent encourages another until everyone encourages the profane, even those who promise to stand against it.
In Congress-run Rajasthan, on October 1, criminal conspiracy charges were filed against a journalism for reporting that the deputy chief minister’s phone was tapped. A week later, party leader Rahul Gandhi announced that if India had a free press and functioning institutions, Narendra Modi’s government would fall.
Indeed, Justice Dhar’s judgement was not a sign of hope. It was an anachronism, a whisper from the past, a straw in a changing wind. On the day that he delivered a reminder of India’s fading democratic norms and constitutional rights, the Supreme Court declared that the freedom of speech and expression was the “most abused right in recent times”.
This is a court that has almost entirely allied itself with the government and its narrative. As many legal scholars monotonously point out – to no effect – the Supreme Court has placed in cold storage urgent matters, from the controversial new citizenship law to illegal detentions in Kashmir. Far from placing fundamental rights at the centre of its jurisprudence – as every constitutional court should –
the Supreme Court has increasingly turned to preaching about Modi’s pet theme, fundamental duties (inserted into the constitution during the Emergency by India’s first autocrat, Indira Gandhi).
Some fundamental duties have been quietly weaponised and embedded into the emerging enterprise of criminalisation of speech and expression, particularly one related to protecting “sovereignty, unity and integrity”. It is as vague as the interpretation of laws deployed to restrict fundamental rights and push the narrative of one nation, one people, one religion and whatever other façade of unity the government declares as the national interest.
In the pursuit of this alleged national interest – which is anything but – any perversion of democracy is acceptable. We have witnessed the slow throttling of Parliament, which has gone from a house of robust debate to a rubber-stamp of the ruling party. We have witnessed the willingness of the bureaucracy, the police and judges to be enforcers of not the constitution but the writ of the ruling party and its narrative.
We are witnessing the distinct signs of a democratic twilight. But none of it would be possible without our collective and widespread acceptance, complicity and apathy.
Samar Halarnkar is the editor of Article-14.com, a project that tracks misuse of the law and the hope it offers.
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