Attacking on the press

Given the history of protection of freedom of the press in India, to charge the editor, reporter and

On 1 June 2008, the Times of India and two of its employees were charged with sedition and criminal conspiracy for a series of investigative articles that questioned the competence of the police chief in Ahmedabad, Gujarat, India.

The charges stemmed from the newspaper’s investigative reports that showed alleged links between Ahmedabad police chief O.P. Mathur and organized crime. The reports also questioned his ability to guarantee security in the city. The scope of the charges were later increased to include one of the papers' illustrators.

Although the police chief may have been justified in proceeding with a lawsuit alleging the comparatively mild offence of defamation of character, the fact that the three journalists are accused of sedition and criminal conspiracy — serious charges in any country — essentially jeopardises the freedoms of the press and of speech in all of India.

The Times of India argue that any act of sedition must have the effect of subverting the government by bringing it into contempt and hatred, or by creating disaffection against it and question the validitiy of the charges by noting there is no suggestion in the charges filed that the offending articles had that effect. The Editors Guild of India sees the charges as anachronistic, as sedition was once a charge brought against the Indian media by the British colonial government during the struggle for freedom. They insist abuse of the sedition charge would negate the freedoms guaranteed by the Constitution.

Article 19 of the Indian Constitution guarantees the right to freedom of speech and expression. Although there are laws restricting these rights, such laws are only applicable in limited cases regarding the interests of sovereignty and integrity of India, state security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Nowhere is it indicated that someone exercising their right to free speech could be charged with sedition.

Furthermore, this guarantee is supported by international law. Article 19 of the International Covenant of Civil and Political Rights, an international treaty which India is a party to, guarantees freedom of expression and defines that expression to include the right to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print. As with the Indian Constitution this right is not an absolute right and the provision caries with it a limitation of special duties and responsibilities.

Historically, the Indian judiciary has been a strong supporter of this right. The Supreme Court of India has stated that ‘freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved’. The court has also declared that newspapers constitute the Fourth Estate of the country, and that, while press freedom is not expressly protected by the Constitution, it is implicitly protected by the guarantee of free speech and expression. There are numerous international cases that support the view that freedom of speech is only to be limited in rare cases.

Given this history of protection of freedom of the press in India, to charge the editor, reporter and newspaper with such a serious offence will cast a pall over the media in India and will likely result in lengthy and costly criminal proceedings with the possibility of prison for the individuals involved.

Unfortunately, this is not the first occasion that the freedom of the press has been threatened in India. In September 2007, four journalists were sentenced in Delhi to four months in prison on charges of contempt for accusing a former chief justice of corruption. That verdict was criticized by the Editors Guild of India as an attack on the freedom of the press.

This latest set of charges is an escalation of that attack as sedition implies that a free press is an attack on the order of the state. The use of this type of criminal proceeding to silence the media is worrying and obviously clashes with the sprit of India’s agreed human rights obligations.

Dr Susan Breau is reader in International Law at the School of Law, University of Surrey