DISSENT IN DEMOCRACY-RELEVANCE UNDER INDIAN JURISPRUDENCE BY - ASHUTOSH TRIPATHI
DISSENT
IN DEMOCRACY-RELEVANCE UNDER INDIAN JURISPRUDENCE
AUTHORED
BY - ASHUTOSH TRIPATHI
An
effective functioning of Democracy can only exist if there exits Freedom to
express dissent. Dissent is any opinion that one forms as a part of non
agreement of any policy that is imposed by any government or political party or
any individual or entity. Justice D Y Chandrachud very rightly said that
“Dissent is the safety valve of democracy”. But in recent times we see that
this principal of dissent is clashing with the media ethics as nowadays we see
of lot of recurring instances of media violating their right to Freedom of
Press. Also we see that a lot of Journalists are being arrested just because
they have expressed their dissent over the policies of the government and so
on. Therefore a Constitutional Approach should be maintained in order to make
space for both the Democracy and Dissent in order to have an effective
functioning of the nation. There is a need to indulge dissent in democratic
discussion as democracy and dissent are inseparable. Also the fact that
democracy is incomplete if there is no free press cannot be ignored. It is an
unimaginable situation if the ruling party of every country starts controlling
and regulating media, then that is the end of democracy. There is the need to
make the press structurally independent of both government and private economic
power.[1]
Media freedom has deteriorated worldwide over the past
decade. While the threats to global media freedom are real and worrying in and
of themselves, their implications for the state of democracy which makes it all
the way more truly dangerous. In what is
perhaps the most worrying development is that freedom of press has come under
unusual pressure in the recent years. In a democratic nation, on one side the
populist leaders aim to secure and expand their achievements by controlling the
press, whereas on the other side the established autocratic governments
continue to use the powers suppress the dissenting voices, as any violation of
their dominance in the media threatens to expose official misconduct or
discredit the media. official narratives.[2]
Right now the need of the hour is that media sector should
work freely and independently and only then they can do complete justice to
their job which is keeping its citizens informed about everything happening and
to expose the leaders of the wrongdoings by holding them accountable. The free
and independent media sector is as important and crucial as the free and fair
elections for the democracy to sustain. Absence of this will lead to citizens
not being informed of the decisions about how they are being governed, and the
abuse of power and also this will keep happening and it will never be expose
the wrongdoings, hence it will never be corrected.[3] The Indian Constitution
guarantees Freedom of Speech and Expression under Article 19. So there is no
loophole in the Constitution. Problem arises because this right can be easily silenced and is overrides by the ineffiency
of the criminal justice system and also there is a lot of inconsistency of
jurisprudence.[4]
India's legal system is known to be bogged down and overwhelmed, causing long
and costly delays that can deter even innocent people from fighting for their
right to freedom of expression. Dissent is the lifeline of any democratic
nation. It is the sign of a variety of perspectives and a variety of competing
although sometimes there is conflict of interest. Also without free press
democracy can never be a success. Free press is the backbone of democracy,
since it is way by which people of the country can channelize their voice and
put their concerns across. But In the recent years we have seen media houses
falling a victim to monetary temptations for which they spread agendas of the
political parties in order to influence the minds of the people. These media
houses should understand that they have a huge burden on their shoulders as
being the fourth pillar of democracy. They cannot comprise with their ethics
and spread fake news or other news just to influence the masses. Media has a
very important role as it moulds the minds of the citizens.
Media’s role in dissent and Freedom of Press is two parts of the same coin and
absence of one will create havoc in the society. Dissent expressed by the media
is an integral part of their right under Article 19 of the Constitution i.e
Freedom of Speech and Expression and also is a very important part of their
profession, and to stop this is against their right.[5]The
freedom of press mentioned under Article 19
of the Constitution of India is in line with the concept of dissent in
democracy, therefore it becomes integral
to maintain a balance between the two.
India’s Press not so
free anymore
Media
critics are of the opinion that mass media generally encourage scandals and
gossips and for that matter even violence. They believe the media houses play a
major catalyst in order to sensenationalize even a small rumour and interpret
information eventually creating a whole drama out of any news or event. The
media critics also go on to claim that today’s media is influenced more by the
lives of the celebrities rather than events of public interest and national
importance. The media industry has become competitive not in the sense of which
news channel shows original and unbiased opinion but their major concern is
generating the highest TRPs. And because of all these frequent instances one
cannot rely on these media houses and it makes us question the worthiness of
the content. But the fact that there are some journalists who risk their lives
just to report the actual news and information cannot be denied or ignored.
There are journalists who raise concern and express their dissent but the
powerful and people with political connections try all that they can to curb their
right to dissent.
I am
of this opinion which is strongly believe that in today’s era the Indian Press
is not so free anymore and more they are puppets in the hands of powerful
people. And when we see that there is a journalist working in these media houses
who does not want to be one, they are harassed and their rights are violated.
Lot of Journalists are arrested and put in jail just because they try to find
out the real information. There are various instances which happened recently
and has been happening in our country which proves that whenever these people
try to show their dissent, they are punished for the same. Some of the very
recent ones are mentioned below:
·
On 5th October, a Malyali
Jornalist was arrested by the UP police under the UAPA just because he was on
his way to cover the recent controvertial case of the Hathras case where a
Dalit girl was burnt alive overnight.[6]
·
8th october, a journalist from
Manipur was arrested under Sedition charges only because he had expressed his
dissent via facebook post and had responded to a post by the wife of a BJP
Politican.[7]
·
18th Aug 2020- A freelance
journalist was arrested by the UP Police in relation to a tweet where he had
expressed his dissent.[8]
·
16th July, 2020 when a journalist
from Assam, was arrested because he wanted to conduct investigation related to
cattle smuggling.[9]
·
11th may, 2020 when a journalist
was arrested in Gujrat by the police on charge of sedition only because he
expressed his dissent by criticizing the CM and thus this was a violation of
his freedom of Speech.[10]
·
3rd Sept, 2020 when a journalist
was arrested after he had exposed a mid day meal scam and had prepared a report
stating that the children in these schools were being fed rotis with salt. He
was put in jail under charges of sedition.[11]
·
23rd Sept 2020 a journalist was
arrested in Gujrat by the police because he expressed his dissent via tweet
regarding PM modi.[12]
In
the case of Sushant Singh Rajput, there was no evidence that Rhea had played an
important role in his suicide. The AIIMS doctors in their final report stated
that this was a case of suicide and not murder but despite this the media
houses formulated various conspiracy theories and fanned them and for a very
long time media trials went on where Rhea was blamed for the entire incident.
Republic Tv was served a notice by the High Court and was accused for spreading
fake news in order to increase its TRP. The Bombay High Court also reprimanded
the Republic TV and said that the coverage of SSR case was not an investigative
journalism. These media houses just just news because they have been told to
show news in order to keep the people enagaged and to do anything to generate
TRP.
The
recent arrest of Arnab Goswami, Editor in Chief of Republic Tv in the month of
November, 2020 became very controvertial and polarizing news. On one hand while
some people celebrated his arrest while this incident incited the people to say
that it can be claimed as an instance of fascism and talking about the freedom
of speech being transgressed upon. If people think that the recent arrest of
Arnab Gosmani is because he expressed dissent against the government, then that
may not be so. He had not got arrested because he had raised the issue of the murder
of the Sadhus in Palghar which anyways he had tried very hard to communalise
neither he got arrested for sensanationalizing and carrying out a witch hunt
for a lot of female bollywood celebrities. Had he got arrested for doing these
things on his channel then it could have be said that Arnab’s right to free
speech is being violated.[13]
I am
not saying all this because of the instances seen where journalist are jailed,
instead I am of this opinion because the media has become a substitute for more
subtle efforts to limit their independence. Section 124 of the Indian Penal
Code which talks about sedition is very arbitrary according to me. It is one of
the big obstacle that an individual faces while exercising his/her Right to
Dissent. The state uses the Sedition laws in most of the cases (which can also
be seen from the above mentioned instances) to put a restriction on this right.
In the case of Kedar Nath vs. State of Bihar,[14]
the Division bench observed that “Section 124 of IPC has a strong deterrent
effect on dissent even if it is not used. Sedition law a weapon against
constitutional spirit of modern democracy.”
In a
Democratic nation, the elected leaders should be the most solid advocates of
freedom of the press, but it is seen that with clarity they silence the
important media voices and strengthen the means to provide favourable coverage.
This is a very solid example which proves that there is huge fall of democracy
globally. The freedom of the media has deteriorated around the world over the
last decade and new forms of oppression have emerged. In some of the most
influential democracies in the world, large segments of the population no
longer receive unbiased news and information. The Indian Constitution and
various international treaties to which India is a signatory guarantee the
Right to Freedom of Expression and protects it. The press has a fundamental
right to seek and disseminate information but this right is being attacked, and
some of the abuses come from unexpected sources. The erosion of press freedom
is a sign and part of the collapse of other democratic institutions and
principles, which is a particularly alarming fact. Common methods include state-sponsored
property changes, regulatory and financial pressures, and public accusations
from honest journalists.[15]
The government has also chosen to award television licenses, which effectively
eliminates unfriendly withdrawals from broadcast waves. The goal is to ensure
that the media serve the heads of power rather than the general public. And just as restrictions on media freedom often
precede the erosion of other rights, the removal of such restrictions promotes
and catalyzes further democratic progress.[16]
We have a constitutional statement in India that values
??freedom of Speech and expression but it is really barely protected. India has
body, that is, Press Council of India, which is an action body. The country
seems to need more detailed legislation on media and protection and bring
certain regulations Not only with regard to freedom of speech and expression
but also the security of journalists.[17]
Suppression of
Dissent- The only way out?
Perhaps during the most dreaded development in recent years,
freedom of the press has been under extraordinary pressure. Attacks on media
independence are often associated with the takeover of new or existing leaders
or attempts by established administrations to crush perceived threats to their
control.[18]In
the year 2019, when the government introduced the CAA-NRC bill, a lot of people
have expressed their dissent over the bill.[19] During that time one of
the Justice of the Supreme court, Justice Deepak Mishra had stated- “A
dissenter is not an Anti-national”. This simply means that any person who shows
his unwillingness to accept any state action cannot be termed as an anti
national. Expressing Dissent is recognised as one of the aspect of the right of
Freedom of Speech and Expression guaranteed by the Indian Constitution. Since
those who do so enjoy the right to freedom of expression and expression, it may
have its own opinion, which means that he can clarify his thoughts and opinions
without fear of retaliation.[20] But here in India we see
instances of suppressing the dissent as its believed that it’s the only way
out. We live in a democracy and Dissent is very important for the democracy to
function.
Democracy
is generally experiencing a decline in political rights and also civil
liberties. It has become painfully clear that freedom of press cannot be taken
for granted ever. India being one of the most populous democratic country in
the world, has also signalled that it is part of the media's responsibility to
hold the government accountable by expressing their dissent.[21]
There have been lot of cases mentioned herein wherein people who have expressed
their dissent are generally termed as being an anti-national. It is the right
of every citizen of our country to criticize, demand for clarification and
verification and to hold the government accountable, therefore it cannot be
termed as being anti-national. We can notice a clear tension between
journalists who try to carry out proper democratic functions and those whose
anti-democratic regimes are determined towards power retention. When we see the
independent reporters doing innovative and courageous act of in disseminating
information for the public good, it gives us immense hope that democracy is
still alive. But we need to understand the
fact that these journalist cannot will not be able to meet the need of millions
of people who only have
access to government reports and with their own instincts to judge claims by
corrupt and abusive leaders.
The
International Covenant on Civil and Political Rights (“ICCPR”),[22]
to which India became a member in the year 1979, states:
A. Firstly,
everybody has equal right to express their opinion without any interference.
B. Secondly,
everybody will have the right to expression, which will include within its
ambit the liberty to share or receive information or any other ideas
irrespective of oral, written or printed boundaries, in the form of art or any
other means of your choosing.
C. Thirdly,
the right to Freedom of Expression carries with itself certain
restructions.Therefore it has certain responsibilities and duties but these are
only specified and required by law. These are (a) Out of respect for the rights
or reputation of others in the society; (b) To protect national security or
public order or public health or morality.
The
International Covenant on Civil and Political Rights is a consequence of the
Universal Declaration of Human Rights ("UDHR"), which was adopted by
the General Assembly of the United Nations in 1948[23]
and provides in Article 19 as follows :
Everybody
has the liberty to express their opinions freely. This right includes the
freedom to have opinions without interference and to seek, receive and pass on
information and ideas through any medium and regardless of borders.[24]
One
of the first cases that was decided by the Supreme Court with regard to Freedom
of Speech as an aspect of part of the right of Freedom of Speech and Expression
was the case of Romesh Thappar vs. State
of Madras[25].
In this case the court had stated that Freedom of press is a part of Article 19
of the Constitution. It observed that “Freedom of Speech and Press lay at the
foundation of all democratic organizations, for without free political
discussion, no public education, so essential for the proper functioning of the
process of Government, is possible”. Similarly in
the case of Indian Express v. Union of India[26] it was stated that “the
Press plays a very significant role in the democratic machinery of the
country.” It upheld the freedom of presss and invalidated all the laws and the
administrative actions that were abridging the Freedom of Press.
Therefore,
in a democratic country like India, it becomes very important to have the right
to express disagreement and to understand their right to dissent with peaceful
means for our country's overall and healthy development. So in my opinion for a
democracy to function without any hindrance there is very important to
understand the three Ds. The first being Discussion, second being Dissent and
lastly Dialogue. Right to Dissent is one of the Constitutional Right of all the
citizens og this nation and suppressing that can never be a solution for any problem or protest.[27]
Striking a balance
between Freedom of Press and
Media’s Right to
Dissent
It
is very important to have a balance between the freedom of press and Medis’s
right to dissent the absence of this can endangers the working machinery of
democracy.[28]
The right to dissent is crucial for a society that upholds and encourages the
exercise of freedom of research, inquiry, objection and association, whether
science or other creative activity is prosperous, educational or not. It is a
necessity. Science, literature and politics are not abstractions or luxuries,
but the first preconditions for the survival of a democratic society. Drawing a
line between the exercise of freedom and the restriction of freedom is one of
the most sensitive tasks of political spirit and philosophy. "A society
that attempts to put freedom of press and right to dissent in strait jackets
will find that in strait jackets there can be no movement and that the result
will be intellectual atrophy."In the case of Maneka Gandhi vs. Union of
India[29],
It was stated that “Democracy is based essentially on free debate and open
discussion, for that, is the only corrective of government action in a
democratic setup. If democracy means the government of the people by the
people, it is obvious that every citizen must be entitled to participate in the
democratic process and to enable him to intelligently exercise his rights of
making a choice, free & general discussion of public matters is essential.”
The
constitution gives the media a wide range of freedoms, and in fact, free media
is essential for the government to function well. Not only economic development
but also aspects that affect people, such as the relationship between people
and society, are covered by the media. Justice Patanjali Shastri while
delivering a judgement observed that “freedom of speech and of the press laid
the foundation of all democratic organization, for without free political
discussion, no public education, so essential for the proper functioning of the
processes of popular government, is possible.” The media mainly teaches two
methods. First is about providing new things, revealing the background to the
news and commenting. Second is the Obligation to provide the whole news without
any bias or selectivity. The most important thing here is that it educates the
masses and what will be the biggest honour is when they analyse the entire news
and deliver a comment on it. In the Kedar Nath case[30],
the court made an attempt to draw a balance between freedom of speech and
expression and the restricting power of the legislature. It observed that “the
security of the State, which depends upon the maintenance of law and order is
the very basic consideration upon which legislation, with view to punishing
offences against the State, is undertaken. Such legislation has on other hand,
fully to protect and guarantee the freedom of expression, which is the sine quo
non of a democratic form of the Government that our Constitution has
established. A citizen has a right to say or write whatever he likes about the
Government, or its measures, by way of criticism or comment, so long as he does
not incite people to violence against the Government established by law or with
the intention of creating public disorder.”
Individuals
who claim what may be unpopular with the silence of power are still entitled to
the freedom guaranteed by the Indian constitution. Expressing dissent is a
living symbol of democracy and can not be deviated from by prosecuting those
who have raised the unpopular causes. Today, as we address the individual's
right to disagree with democracy, it is inevitable that discussions will be
involved in the ways and methods of expressing dissenting views. However, in
this whole process the main precondition for that discussion is forgotten.
Statements of dissent should not be seen as an obstacle to policy, but as a
critique of better, more informed decisions. The right to freedom of press
cannot be seen in a different context, instead it is a part of the Media’s
right to dissent which is a virtue of democracy.
Constitutional Right of Media/Press
Here
we can remember the right to freedom of speech and expression is one of the
fundamental rights guaranteed to the citizens of our country. Media freedom
also derives this right from the same right guaranteed to the citizen of India.
As we know that there isn’t any specific provision provided in the Constitution
of India to protect the rights and freedom of media/press, therefore the
judiciary in the different judgements delivered over the period of time has
stated that right of the press can be inferred from the Freedom of Speech and
Expression guaranteed under Article 19 of the Constitution of India. But this right
guaranteed under the Constitution is not an absolute right and this right is
subject to restrictions and it is regarded as a natural right. The restriction
regarding the right to freedom of speech and expression is clearly mentioned in
clause of Article 19 of the Constitution of India. Article 19(2) to Article
19(6) states that restrictions can be imposed by law made or to be made by the
State. If a right is created by legislation, it can be deprived of by the
legislator and can only be subject to such restrictions if it is permitted in
the constitution itself. That is why our constitution allows the state to put
restrictions and limitations on fundamental rights and freedoms.
As
above mentioned, Article 19 (2) to Article 19(6) deals with the restrictions
imposed to enjoy all the six fundamental rights guaranteed under Article 19 (a)
to 19(g). However, Article 19 (2) is exclusively provided as regards to the
restrictions on the exercise of freedom of speech and expression. Article 19
(2) of the Constitution provides: “nothing in sub-section (a)of clause (1)
shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said subsection in interest of the
sovereignty and integrity of India, the security of State, friendly relations
with foreign States, public order, decency or morality or in relations to
contempt court, defamation or incitement to an offence.”[31]
So,
in accordance with Article 19 (2) of the Constitution of India, the State may
impose reasonable restrictions on the exercise of freedom of speech and
expression for any of the above reasons. Therefore, the law restricting the
exercise of freedom of expression and expression must be for the specific
purpose set out in Article 19 (2), and the restriction must be a reasonable
one. The Supreme Court in one of the cases stated that “no person can be
divested of his fundamental rights. They are incapable of being taken away or
abridged. All that the State can do, by exercise of its legislative power is to
regulate these rights by imposition of reasonable restriction on them”[32]
In
this era the media industry and the citizens together have a very important and
huge responsibility on their shoulders which is to keep a balance with the
growing society and the people of the nation. In a changing scenario, when we
face several challenges with machines and the public needs to meet the
challenges of globalization and international development and that too with
much sincerity.[33]
The rationale outlined above is really important when considering national
interests. That is why the smooth functioning of the democratic process, the
vigilance of the legislator and sometimes, under constitutional limits and
tolerances, public opinion and the press works. India, being one of the most
popular democracy, the media industry has to keep the following points in their
minds as their most important responsibility: -
·
To provide the public with fair information.
The media must not pollute facts. They must present them as they are.
·
To perform the important task of expanding
the horizon how people perceive by giving them knowledge. In some states in
India the literacy rate is not so good therefore it is their responsibility to
broaden their thinking. t rate of illiteracy, it is the duty of media to impart
knowledge and broaden and their views.
·
To express their dissent over any action in a
fair manner which should not be contrary to
the spirit of democracy or essence of justice.
·
To point out the practice of the concept and
play an important role in initiating an appropriate procedures for those
accused of antisocial activities, regardless of political affiliation.
·
To promote unity and brotherhood and to
create a belief in democracy and justice. If the media and the press industry
follows this obligation, the Indian people will truly enjoy democracy and will
understand the value of it.
The
press in particular is the opposite tool. In fact, in India and other countries,
there was a time when the press became a particular opposition party in
Congress. Violation of freedom of the press is not an end in itself, but an end
to a free society.[34]
The
Indian courts have generally protected freedom of expression, but the protocols
are uneven. Some of the lower courts still continue to make unfounded,
speech-limiting decisions, and the Supreme Court is often a strong advocate for
freedom of expression, but it can be inconsistent and therefore lower court is forced to choose in
which case what precedent to be
emphasized. This inconsistency contributes to the inconsistent terrain of the
right to freedom of expression, and local officials and interest groups
continue to harass and threaten unpopular and dissenting views. Authorities
then increase the risk of violent protests and civil violence and justify
restrictions on expression as necessary to protect public order. Although there
are situations where speech encourages cross-border violence and requires legal
action, authorities have abused or abused criminal law as a way of silencing
critical or minority voices, especially at the state level. In the case of
Shreya Singhal case[35]
it was stated that “When it comes to democracy, liberty of thought and
expression is a cardinal value that is of paramount significance under our
constitutional scheme”.[36]
Conclusion
In a
democratic nation while independence is media is like a bulwalk likewise right
to dissent is also a very crucial element that can never be ignored for the
sustainability of media freedom. But the media industry has to keep in mind the
media ethics. They have to make sure that their action don’t inspire or for
that matter excuse violation of freedom of press. Any democratic nation has a
very particular role to maintain the freedom of media. A strong and swift
action needs to be taken against the violations freedom of media around the
world through freedom of the press, telephones, conferences, letters and the
imposition of targeted sanctions against any perpetrators. This includes
statements against journalists and authorities that violently identify and fail
to prosecute attackers, media access should be restricted reasonably, certain
websites needs to be blocked and specific topics needs to be censored.[37]
In today’s era it has become very important to
understand the value of having a freedom of press that is free from the
restriction and only then can a democracy prosper. A counry without free press
will be a very dangerous one. Freedom of Press is the fourth pillar of our
democracy and also one of the fundamental one but media industry has forgotten
this and I can say this because recently what we are seeing is totally
irresponsible journalism whose only main motive is TRP generation and not
providing correct information. A few media houses who have not joined this TRP
race and who continue to show dissent towards actions of the government are
termed as Anti-national and these media houses are forced to take down the news
or the journalists and the Editor in Chief of these channels are molested and
threatend for their kind of reporting. All this needs to stop. These people
need to understand that India is a democratic nation and the basic foundation
of the democracy is the people and we can only benefit from professional
journalists who have the ability to explain them. It has been always said that
a free press is like a watchdog in a democracy. Given the threats that journalists currently face,
there is a particular need for external assistance, with a particular focus on
strengthening independent media by providing technical training and emergency
assistance.[38]In
this oppressive environment that we are seeing currently, especially when we
talk about the media freedom, there has been an increase in the percentage of
people expressing their dissent through various social media platform. People
have begun to realize that corruption is an element that should be eradicated.
Various social networking sites, along with traditional media industry, have
limited the threat of arbitrariness exercised by the government. People express
their dissent even when there is fear. It is a very powerful weapon that
increases transparency in public life and it builds pressure on corrupt
organizations and individuals. The press enlightens the public by reporting and
interpreting what is happening in the world around them. Since the newspaper is
an eyes for a citizen in the Democracy.[39]
Jawaharlal Nehru declared,“I would rather have a
completely free press with all danger involved in the wrong use of that
freedom, than a suppressed or regulated press” but then nowadays we see
frequent instances of malicious reporting by the media houses to generate TRP
ratings; baseless, defamatory and malicious news reporting which tends to
create a question mark in our minds on what Jawaharlal Nehru once said and we
it has created a doubt in all our minds that do media need not be regulated. It
is because of all these happenings that the need has been held that the press
and the media needs to be regulated in a reasonable manner so as to not violate
its right to freedom of press covering within its ambit their right to dissent. The professional environment ensures that
journalists act as government guards, report on objections, speak for those
left behind and discourage self-censorship. Except in exceptional cases,
self-censorship should not completely discourage the media. Just as it is
appropriate to restrict freedom of expression in certain cases, such as hate
speech and slander, it is appropriate for the media to take reasonable care in
their practice.[40]
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[6]The Wire. (2020, October 6).
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[9]Das, G. (2020, July 17). Assam
Journalist Arrested After Reports on Smuggling, Channel to Move HC. The Wire.
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[10] The Indian Express, Express News
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