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Democracy That Brooks No Naysayers

In India, the apex court assures citizens a tweet and content should be ignored if one does not like it, but the same sentiment is not shared by the Union Government. 

In one week, a lot has happened in the Supreme Court of India, which will continue to affect us in the long run. Viewed alongside many other developments, it fills in the blanks in the puzzle called regimental government. Yes, we may fool ourselves into believing India is a democratic country but lately, when it comes to the arrest of journalists (I am not even speaking of the arrests of thinkers and activists), India has a worse track record than countries like Myanmar, Egypt, Iran and Zimbabwe. Our country’s record too is rather dismal.

Free press only for few

In fact, in August 2019, Time magazine featured a special called, ’10 Most Urgent list’ on journalists who needed to get released from jail. It was published after the United Nations special report found credible evidence for investigating deeper into the role of Saudi Crown Prince Mohammed bin Salman in the killing of journalist Jamal Khashoggi. In the 10 Most Urgent list was Aasif Sultan, a reporter of Kashmir Narrator, who was in jail for a year on August 27, 2018. He was charged for allegedly ‘harbouring known terrorists’.

Now a year after this list was published, India has arrested many more, not just journalists. On August 19 this year, the Supreme Court was hearing the habeas corpus filed by the mother of Dr Kafeel Khan, seeking the release of her son. Dr Khan was placed under preventive detention in Mathura jail, Uttar Pradesh, for violation of the National Security Act (NSA), for allegedly being a threat to public order. Senior Advocate Indira Jaising appeared for the mother. A three-judge bench, led by the Chief Justice of India (CJI) S A Bobde, directed the high court to expedite the disposal of the petition.

Dr Khan was placed under preventive detention in Mathura jail, Uttar Pradesh, for violation of the National Security Act (NSA)


Meanwhile, another case, of course, became international news, as Arnab Goswami was given bail by the SC on November 11. In his oral observations, the judge said, “People are now put in jail for a tweet…we are travelling through the path of destruction of liberty. You may not like his ideology…..But citizens are sent to jail, high courts don’t grant bail. We have to send a strong message.”

The bench, headed by Justice D Y Chandrachud, had heard another petition of a woman who was hauled up for a tweet against the West Bengal government. Justice Chandrachud observed, “We are deeply concerned. If this is how human liberty is persecuted, the SC has to be there for every person….”

In fact, in June 2019, a journalist based in UP, Prashant Kanojia, was arrested for his social media comments against Chief Minister Adityanath. His wife,  Jagisha Arora had filed a habeas corpus before the vacation bench of Justices Indira Banerjee and Ajay Rastogi. They ordered the immediate release of Kanojia on bail. The bench observed, his arrest and remand were illegal and went against personal liberty. They also turned down the state’s submission that the petitioner should approach the lower or high courts for bail.

After the order on Dr Khan, some more cases of hearing of bails were filed by the lawyers of journalists and activists. This precedence seems could have irked the CJI, who was heading a bench on November 16 and listened to the submissions filed by Senior Advocate Kapil Sibal. Sibal appeared on behalf of the petitioner, the Kerala Union of Working Journalists (KUWJ). Siddique Kappan was arrested by UP Police while he was proceeding to cover the Hathras case of the alleged rape and murder of a 19-year-old Dalit girl.

Prashant Kanojia was arrested for his social media comments against Chief Minister Adityanath


At one time, the CJI told Sibal, “We are not on the merits of the case. Why can’t you go to the High Court?” Sibal responded saying Kappan was not even being allowed to meet anyone and was in jail. At which point, CJI said, “We are trying to discourage Article 32 petitions.”

Now, according to Dr Babasaheb Ambedkar, the Constitution of India gives citizens an opportunity for legal remedies which protects the violation of their rights by the state or other institutions/individuals. It gives citizens a right to move the SC or HC for the enforcement of these rights. Ambedkar called these rights under Article 32 as soul and the very heart of the Constitution. This Article makes the apex court the guarantor and defender of this right.

For a common person, especially in the current political disposition the observations by the CJI send a strong message. Though they have fundamental rights under the Constitution, Article 12-35, the main judge who has taken an oath on this same Constitution and has to protect it, has clearly said they do not encourage citizens to seek redress under the right given by the Constitution. There are many undercurrents to this whole issue.  The legal fraternity staunchly defends the legal institution and feels it is the opinion of a single person and it is not right to read between the lines but it also admit that pendency is the biggest tactic used by the lower courts.

Regulation times

In fact, the day the CJI made his remarks was also the day the Union government issued an order bringing all content providers like Amazon, Netflix and online new portals under the ambit of the Information and Broadcasting ministry. This notification was signed by President Ram Nath Kovind on November 11. These regulations would also apply to social media platforms like Twitter, Instagram, Facebook and so on. Till now, digital content in India was truly free in India, with no governing body.

In fact, the world over, there are attempts to regulate the internet. In Germany, there was a debate whether the net was a print subject, which would then come under the state or whether it was broadcast, in which case it would come under federal laws. The internet is seen as a modern electronic medium. Many countries–starting with the USA, France, Australia and Singapore–have placed the Internet under regulators of the broadcast industry.  In France, the Minitel system is regulated by a body e Conseil Supérieur de la Télématique that each content providing company signs a contract with and abides by. Singapore, for that matter, has a reputation for censorship. They regulate the internet, but that, most critics say was expected. China has by far the strictest regulations and it has recently arrested not just bloggers but also independent journalists. Thailand too has regulated the internet and has been tracking protesters on various pages and sites.

The notification to bring OTT platforms and digital news sites under the ambit of Ministry of Information and Broadcasting was signed by President Ram Nath Kovind on November 11.


As for the media, in many countries, journalists are being targeted, just like in India. Bail is denied to journalists after slapping them with some serious charges. In Myanmar, a court denied bail to two Reuters news agency journalists accused of violating the country’s Official Secrets Act.

A Zimbabwean investigative journalist too will continue to remain in jail as he was denied bail, even as the United Nations secretary-general raised “concern” about a wave of arrests in the country.  While journalists in Germany have called for greater rights and freedom from surveillance.

On August 5, 2018, photographer and activist Shahidul Alam was arrested and detained shortly after giving an interview to Al Jazeera and posting live videos on Facebook that criticised the government’s violent response to the 2018 Bangladesh road safety protests. He was arrested under the draconian law, section 57 of the Information and Communication Technology Act for “false propaganda” on social media. He was finally released on November 20, 2018.

The pattern across the world is the same: Governments are controlling the media, regulating the Internet, social media platforms and disallowing any form of dissent or protest.

Activist and photographer Shahidul Alam gestures as he is removed from a vehicle by policemen for an appearance in a court, in Dhaka on August 6, 2018. (AFP PHOTO / MUNIR UZ ZAMANMUNIR UZ ZAMAN/AFP/Getty Images)


In India, while these developments are taking place,  the apex court assures citizens a tweet and content should be ignored if one does not like it, but the same sentiment is not shared by the Union Government, which has already ensured the arrest of 16 scholars, activists and educationists who allegedly criticised and conspired to topple the Government. For over two years now, they have been languishing in jail, charged under the stringent UAPA rules. The HC refuses to hear their bail pleas and some of the activists have fragile health. The fact is, most of them were not even named in the FIRs, nor were they present at the Elgar Parishad held at Shaniwar Wada in Pune on December 31, 2017.

In fact, in August 2018, some scholars had approached the Supreme Court, demanding an independent probe into the allegations against Pune Police. This was rejected by a three-judge bench of the SC, with Justice Chandrachud dissenting.

In fact, one of the persons arrested, lawyer and activist Sudha Bharadwaj had filed for bail in the HC on health grounds in August this year. Her bail was rejected and the bench of Justices RD Dhanuka and GV Bisht asserted that the state would cover her medical expenses while she was lodged in prison.

The fact that the government is getting harsh with dissenters and questioners is not new. Meanwhile, rubbing salt in the wounds of the media, Union Home Minister Amit Shah said, “[The] Modi government is committed towards the freedom of press and strongly oppose those who throttle it.”

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