Press Freedom: Government's Stance - Rhetoric vs. Reality

Press freedom | Representative image | Photo courtesy: Special arrangement

In recent times, India has been a witness to a disturbing trend: the confiscation of journalists' electronic devices by investigative agencies. These developments strike at the very heart of press freedom. What's particularly disconcerting is the apparent lack of adherence to any established rules or procedures when the agencies embark on the task of seizing such devices in the name of gathering evidence. This blatant disregard for due process not only undermines the fundamental principles of press freedom but also poses a significant threat to the health of our democracy.

The data stored within these electronic devices holds paramount importance for journalists in their pursuit of truth and accountability. These gadgets serve as the digital notebooks of the modern era, containing a treasure trove of information, notes, correspondence, and confidential sources that journalists rely on to investigate and report on critical issues. Whether it's uncovering corruption, exposing wrongdoing, or shedding light on matters of public interest, these devices are indispensable tools that help journalists piece together the puzzle of a story.

Acknowledging the gravity of the situation, the Supreme Court took proactive steps last month in response to a Public Interest Litigation (PIL) filed by the Foundation for Media Professionals. The apex court directed the Centre to establish comprehensive guidelines for the seizure of digital devices belonging to journalists. The move came after the court was made aware of the pressing concerns at hand and the very real threats posed by unchecked search and seizure powers wielded by law enforcement agencies. Such absolute powers to investigating agencies violates the constitutional guarantees, including the sacrosanct principles of a free and independent press.

However, when this case was heard today in the Supreme Court, the government maintained a troubling ambiguity regarding the establishment of clear guidelines for investigating agencies when it comes to seizing electronic evidence from personal devices, including mobile phones and computers. This ambiguity, particularly in cases involving academics and media professionals, raises serious concerns about the protection of individual rights and the preservation of essential journalistic and academic freedoms. 

Rhetoric vs. Reality

The government's intent, or lack thereof, became evident during the hearing. It appeared that they were engaging in a protracted delay tactic rather than showing a sincere commitment to addressing the issue. Justice Kaul pressed the matter by inquiring, "When will you come up with your guidelines?" In response, the centre’s representative - the Additional Solicitor General (ASG) - said that a "committee" was actively working on the matter and promised to provide instructions by the following week. The ASG also cited his illness as the reason for not being able to closely monitor the progress. 

The concerning trend of seizing journalists' personal electronic devices and retaining them indefinitely has become increasingly prevalent in recent cases. This troubling practice has seen these devices held in the custody of investigative agencies for prolonged periods. According to the petitioners, a staggering number of approximately 300 devices have been confiscated from around 90 journalists in the recent past. 

Back in October, 18 prominent media organisations collectively penned a letter addressed to Chief Justice of India, DY Chandrachud. In the missive, the media organisations urgently implored the apex court to address the growing concerns surrounding attacks on press freedom. They put forth three crucial points for the court's consideration.

Firstly, they called for the formulation of clear and unambiguous norms designed to discourage arbitrary seizures of journalists' phones and laptops, a disturbing trend that has become all too common. Secondly, the organisations urged the court to develop comprehensive guidelines for the interrogation of journalists and the seizure of their possessions. These guidelines would serve the crucial purpose of preventing such actions from degenerating into unfounded fishing expeditions that lack any relevance to an actual offence. Lastly, they emphasised the need to establish mechanisms that ensure the accountability of state agencies and individual officers who, in their investigative zeal, overstep legal boundaries or intentionally mislead the courts through vague and open-ended investigations targeting journalists for their essential journalistic work.

The recent past has witnessed a concerning pattern of searches and seizures at media organisations such as BBC, The Wire, Newsclick, Newslaundry, and even at the residences of journalists across various states. These incidents have shed light on two critical issues that strike at the core of journalistic privilege and the fundamental right to privacy.

In many of these cases, it has become evident that investigative agencies have brazenly flouted established rules and protocols. For instance, the Information Technology Act of 2000 explicitly mandates the capture of the hash value of confiscated electronic evidence before subjecting it to forensic analysis. This measure serves as a digital fingerprint, ensuring the integrity of the evidence and safeguarding against tampering. According to media reports, in both the cases of The Wire and Newsclick, journalists reported that they were not provided with these hash values. 

It is indeed a striking irony that while the press is often referred to as the fourth pillar of democracy, the prevailing situation in India paints a starkly contrasting picture. Law enforcement agencies in the country possess extensive powers to search electronic devices and carry out raids when there are reasonable grounds for an investigation. They also wield the authority to seize property under circumstances that raise suspicion of an offence being committed. However, what becomes glaringly apparent is the absence of legal safeguards to protect journalists from being compelled to surrender their phones or disclose their confidential sources and information. Unlike some other countries, India lacks a specific law that shields journalists from undue pressure and coercion in the pursuit of their journalistic duties.

Absolutely, journalists do not seek special privileges that place them above the law. Instead, they simply advocate for the protection of their fundamental rights as they carry out their crucial role in our democratic society. Journalists have a profound duty to hold those in power accountable, and it's an inherent aspect of their profession to often engage in adversarial reporting. Consequently, it comes as no surprise that when the media fulfils its vital role of scrutinising and questioning the government, it may make those in power uncomfortable.

Regrettably, we have witnessed instances where specific journalists and media outlets have been singled out and subjected to various forms of pressure and intimidation, thereby compromising their ability to operate independently. While it's undeniable that, like in any field, there may be a few individuals who tarnish the reputation of journalism, it is essential to recognize that journalism as a whole is far too critical for our democracy to allow these isolated instances to be used as a pretext to suppress those who diligently fulfil their duty of reporting stories in the public interest and holding the powerful accountable. Securing the fundamental principles of press freedom is no longer something we can ignore when assessing the well-being of our democracy.