ABSTRACT / INTRODUCTION
A protest in many ways is a live constitutional event. It is the moment when people exit their private lives and claim their rights upon the state and it is precisely at that moment that the press is absolutely crucial and yet every bit as obstructed as the protestors. In the last ten years, starting from the Anti-CAA protests at Shaheen Bagh, the farmer‘s agitation at Delhi‘s borders, and students movements on university campuses, journalists over these protests have reported time and again when they were detained, when their cameras were seized, when they were beaten with lathis, when they were refused accreditation and barricaded from vantage points. The narrow yet significant issue that this article looks at is whether or not a journalist has a special right, knowing the existing law, to be at the protest site, to be able to record from the site, and to be able to report, and where that right ends and that of the police begins.
It is not just about press-freedom. It is about three constitutional guarantees the citizen‘s right to assemble peacefully (Article 19(1)(b)), to free speech and expression (Article 19(1)(a) (press-freedom being derived from and included therein))[1], and the powers of the State to impose “reasonable restrictions” (Article 19(2) and (3))[2] which reflect these rights in the name of public order. Placed over and above this constitutional framework is a labyrinth of statutory provisions the Bharatiya Nagarik Suraksha Sanhita, 2023 (which has superseded the C. R. P. C. 1973[3] including the Section 144 powers), the Police Acts of the various states, the Press Council of India Act, 1978[4] and the Working Journalists Act, 1955[5] and the amount of leeway that a reporter has depends on all of this.
A few terms need to be clarified at this stage. The term access refers to the ability (physical or otherwise) of a journalist (or a camera crew or a writing hand) to reach the site or vicinity of a protest, including the roads barricaded by police. The term accreditation used in the context of access, will mean the official authorisation, mainly a press pass issued either by the Press Information Bureau or the state administration, or the Press Council often employed by the police to demonstrate the sanctity of a journalist ‘s position. Police interference used in a comprehensive sense to mean detention, beating, equipment confiscation, card deletion and banning from the location expressed whether or not there was a given order to do so.
This examination is limited to India (though comparisons are made where useful); it is divided into four additional sections: a review of the constitutional and legal framework; an examination of important cases and their implementation in practice; a critical analysis of shortcomings remaining despite these cases; and concluding observations on the emerging trends.
BACKGROUND / LEGAL FRAMEWORK
THE CONSTITUTIONAL FOUNDATION
In India, freedom of the press has never been a separately enshrined fundamental right. Its status as part of the right to freedom of speech and expression under Article 19(1)(a) has been settled as far back as Romesh Thappar v. State of Madras(1950) and Brij Bhushan v. State of Delhi(1950), where the Supreme Court struck down previous censorship orders ruling that the access of the press to circulation was as important a component of publication as the right to publication was itself.[6] This history is important to protest reporting because it means that the right of a journalist to document an assembly is not some special privilege to the press as a class, but an extension of the right to speech that the protesters also enjoy.
Articles 19(1)(a) and 19(1)(b) express parallel civil liberties of free communication and peaceable assembly without arms[7] to the individual citizens. Viewed together, Articles 19(1) (a) and 19(1)(b) embody what we might term as a composite right to public dissent that is, the right of the citizens to assemble their message to the wider public. This combinatory effect of the two civil liberties (free communication and assembly) can be counterbalanced in the provisions of article 19(2) that allows reasonable restrictions on speech in the interest of public order, decency and morality, and the sovereignty and integrity of India, and in article 19(3) that allows similar restrictions with regard to assembly in the interest of public order.
THE STATUTORY LAYER
The historic operational instrument often deployed by police to suppress protest sites was Section 144 of the Code of Criminal Procedure, 1973, which empowered a District Magistrate to pass an order in an “urgent case of nuisance or apprehended danger” prohibiting the assembly of persons.[8] On and from 1 July 2024, this power is provided for by Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a provision that substantively re-enacts the old Section 144 with the same urgency criteria and the same requirement of a written and reasoned order. Such orders are often used to deliver an order to declare an area “unlawful for an assembly”, and police have de facto relied upon such orders to exclude journalists from protest sites to the same extent at any given moment as they exclude protestors a fact that the courts have persistently had to have clarified that a journalist present to report is not a participant in the assembly for the purpose of proscription.
State Police Acts e.g. The Delhi Police Act, 1978,[9] and any similar State legislation authorise the local police to control assemblies, grant permissions for public meetings, and direct coercion against unlawful gatherings, adopted from Section 129 of the old CrPC [now Section 148 of the BNSS]. However, the press does not find any separate exception or protection in any of these provisions; it is on exactly the same footing as other citizens as far as the bare statute is concerned.
The accreditation is administered and regulated more than by a Statute by itself. The central accreditation has been issued by the Press Information Bureau under regulations framed by the Ministry of Information and Broadcasting 1998. There are also various states which have their own accreditation committee, usually chaired by the Director of Information and Public Relations.[10] The Press Council of India which was formed under the press Council Act, 1978, has issued a certain set of guidelines relating to the safety of the press reporters during communal riot, elections and civil unrest, under which the state governments have been directed to enable press reporters having valid chits not to be hindered in the exercise of their profession. These guidelines however are only recommendations with the Press Council which under Section 14 of the 1978 Act has only the power to censure or caution offending authorities but cannot enforce orders or give any restitution to the aggrieved journalists. The Working Journalists Act, 1955, which mainly deals with the working conditions and wages do not have any protective or safeguard provisions for the journalists in their line of action.
LEGISLATIVE INTENT
It should be remembered that the object of section 144 CrPC (now section 163 BNSS) always was taken to be prophylactic as well as time-limited, providing the government with an instrument to forestall immediate violations of peace rather than a continuing royal road to authorise crowd and press suppression. That potential for abuse was flagged in the report of the Law Commission and by intense parliamentary debate on this provision‘s proposed amendments a number of safeguards as courts have subsequently held, would need to be followed including that the order should state cases material to the order, should not needlessly impact the press and would be short-lived while subject also to judicial review. But the lack of any special provision for the media in this context was not apparently an effort by the legislature to target the press for adverse treatment and here ‘s more likely what happened: an expectation that all press freedom would be sufficiently protected by pre-existing constitutional norms was created and then disappointed.
MAIN ANALYSIS & CASE STUDIES
ROMESH THAPPAR AND THE FOUNDATIONAL LINK BETWEEN PRESS AND SPEECH
The landmark which must receive mention when dealing with issues of press freedom in India is Romesh Thappar v. State of Madras AIR 1950 SC 124. The Madras government had prevented the petitioner from entering and circulating a publication called Crossroads on the ground of Public Safety. The Court held that the right to freedom of speech and expression also includes the right to propagate of ideas, and such freedom was protected by the freedom of circulation. The application of the same to the matter of protest reporting is fairly straightforward: if the freedom of speech is frivolous without the right to be heard, the right of the press is pointless without the requisite physical entry to report a protest.
ANURADHA BHASIN V. UNION OF INDIA (2020) — ACCESS AS A CONSTITUTIONAL QUESTION
The most relevant modern authority is Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 coming out of the shutdown of communications in Jammu and Kashmir following the abrogation of Article 370.[11] The petitioner, the Executive Editor of the Kashmir Times, challenged restrictions that rendered the paper under-functional for the purposes of journalists reporting in the area. The Court recognized the importance of the freedom of the press as a fundamental, “valuable, sacred” right in the Republic, protected by Article 19(1)(a) and that restrictions on this freedom must be justified through the tests of legality, necessity, and proportionality, as set out in K. S. Puttaswamy v. Union of India (2017).[12] Importantly, the Court observed that indefinite disruption of communication services and blanket restrictions on movement could not be justified and that directions regarding communication restrictions had to be reviewed periodically and made available for judicial review. Though the case concerned internet shutdowns rather than an individual protesting site, its approach has since been relied upon repeatedly by High Courts to question the validity of area restrictions that by happenstance cut-off access to the press here too, the statute provides the power (Section 144 Cr. P. C., now Section 163 BNSS), but Anuradha Bhasin provides the proportionality guide by which it must be constrained in the face of Article 19(1)(a).
IN RE: RAMLILA MAIDAN INCIDENT (2012) — FORCE, ASSEMBLY, AND THE LIMITS OF POLICE ACTION
Re: Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1, was a Supreme Court order relating to the police midnight crackdown on Baba Ramdev‘s anti-corruption protest at Ramlila Maidan in June 2011.[13] While the case involved the police misconduct perpetrated on protesters rather than on journalists per se, the Court‘s conclusion is equally applicable to correspondents caught up in the same example of excess: the Court stated the right to peacefully assemble is a fundamental right, that police action must be proportionate to the actual threat posed, and that any force employed for the purpose of dispersing a gathering that has not turned violent is prohibited. Several journalists present that evening reported baton wounds and had equipment seized, but the Court‘s larger conclusion that indiscriminate use of force against a peaceful, or partially unruly, public violates the guarantee of life and personal liberty under Article 21 has since been cited by the Delhi High Court in a lawsuit over press injuries during the 2020–21 farmers’ protests, where reporters at the Delhi border sought to contend that assaults on media personnel contravened that same guarantee in the Constitution of India, as well as the normal criminal remedies for assault.
FOREIGN CORRESPONDENTS AND ACCREDITATION DENIAL
There is also specific case history where accreditation disputes have arisen. It is clear for cases where Foreign Correspondents’ Accreditation has been denied / not renewed that Indian courts have universally found that the government has the power to determine whether to grant a foreign journalist accreditation (something which is not flowing directly from the existing rights for an Indian citizen by virtue of representation of a certain territory in the government structure) but that this power must be exercised in good faith and not arbitrarily or mala fide or by way of punishment for those reporting on matters that are unwelcome to the government. The common judicial theme in such cases has been that accreditation is but a facility and not a license, that is the constitutional right of a journalist to report does not cease when the press card ceases to be technically valid, often the practical reasons found for not issuing a press card are the same ones used by police on the ground to justify forcibly removing a reporter from a cordon.
CONTEMPT AND RESTRAINT ON REPORTING — THE SAHARA AND SANJEEV BHATT LINE
Sahara India Real Estate Corporation Ltd. v. SEBI (2012) 10 SCC 603 although a decision on court reporting rather than street demonstrations introduced the narrow doctrine of ‘postponement order’ that the reporting could be temporarily postponed in narrow circumstances and for the purpose of the administration of justice but not permanently gagged.[14] This doctrine has been occasionally and curiously inferred but never directly invoked in the context of street protests, in which where police have argued that temporary exclusion of media can be justified as a proportionate “postponement” of press access. Courts have been dismissive of this argument.” merely because Sahara introduced a ‘proportionality’ review does not mean that the ruling can be imported wholesale into another context where it is, as the Court recognized, intractable to a hard and fast jurisdictional rule.
TYING THE THREADS
Overall, what emerges from these cases (together, of course, with the cases dealing with the journalist ‘s rights in Zubair and Vanlalhruai) is a doctrine that can be boiled down to four points. Firstly, the right to report a protest has a source in Section 19(1)(a) that is independent of the reader ‘s later assessment of the lawfulness or unlawfulness of the protest (Romesh Thappar). Secondly, any executive order that incidentally impairs access to the press (covering internet shutdowns, area cordons, and communication blackouts) must be justified within the framework of proportionality and periodic review established by Anuradha Bhasin and Puttaswamy. Third, the application of physical force or detention on reporters who are present at a public gathering is reviewed under Article 21 equivalently to what is done under Ramlila Maidan on protesters. Fourth, accreditation is an administrative, facilitative arrangement not constitutionally obligatory and cannot in itself justify either barring of entry into a protest or the withdrawal of admission.
CRITICAL ANALYSIS & EVALUATION
THE ACCREDITATION TRAP
The main factual loophole here is the informality but tacit commonality of the police practice of demanding accreditation as a precondition of access. As the case law (outlined above) confirms, accreditation is not a precondition, facilitative though it may be, and in reality it is extremely rare for an officer on a barricade to demand, “do you have an Article 19(1)(a) right?” and not follow that by “no press card, so you are not coming through”. This is not an idle quibble: in practice, it means freelancers, stringers, digital-only journalists and citizens journalists all of whom play a much larger role in modern social-media-preceding reporting than in traditional print-oriented journalism are disproportionately hit; the PIB state accreditation scheme was drafted to regulate industrial age journalism practised in orthodox newsroom offices and has failed to keep up with the digital age. This is a genuine legislative lacuna: the police are not obligated to recognise any alternative form of proof of journalistic purpose such as a letter from an editor, a byline history in a longstanding masthead or a recognised digital media registration pursuant to the (2023) Registration of Press and Periodicals Act, which replaced the colonial Press and Registration of Books Act, 1867.[15]
THE SECTION 144 / SECTION 163 CONFLATION PROBLEM
The second structural defect is that there is no express language in either the old CrPC or the new BNSS that makes a distinction between “persons participating in an assembly” and “persons present to report on an assembly.” Courts have had to resort to a normative difference when dealing with these issues (a distinction that finds no support in the actual language of the Act), which means that the basis for the protection is only as strong as the particular High Court (in spite of state lines) willing to accept a writ petition on any particular day a situation that puts journalists in the unenviable position of having the right at hand in theory, but one which, like so many rights, must be fought to establish in fact in every case, often well after the event, and at the exact time when the value of print journalism has been lost entirely.
EQUIPMENT SEIZURE AND THE ABSENCE OF A SEARCH-AND-SEIZURE PROTOCOL
Neither the BNSS nor any Police Act provides for any particular procedure that may be followed for depriving a journalist of his camera, phone or recording equipment at a protest site. While the seizure of such equipment can be subsequently justified as incidental to a general power to seize evidence, this is a very weak analogy: the content of footage is neither a misappropriated good nor a found item, rather it is work product that should not be deleted by the police or confiscated as evidence in a manner which irreversibly destroys the footage, unlike the seizure and admissibility of such evidence. Several foreign jurisdictions particularly the UK framework established by the Police and Criminal Evidence Act 1984 which creates a special ‘journalistic material’ category requiring a court order before intervention provide mechanisms that Indian law has not yet developed.[16]
THE COMPENSATION GAP
Even where a journalist manages to make out ex post a case for the illegality or excessiveness of police conduct, the scope of the remedy is limited. Criminal proceedings against individual police officers are long and infrequent, departmental investigations are non-transparent, and while the constitutional courts have sometimes granted damages under the 32/226 writ jurisdiction for custodial beating or illegal detention (on the logic of Nilabati Bihara v State of Orissa, (1993) 2 SCC 764),[17] there is no specific fast track remedy for journalists injured or detained while covering a demonstration. The Press Council has the power to admonish, with reputational, rather than direct financial consequences.
SUGGESTED REFORMS
There are four likely reforms that go some way in closing these gaps. One, the Ministry of Information and Broadcasting and state Home Departments could jointly issue a standing order binding on police forces, not merely advisory guidance from the Press Council stating that to constitute a media exclusion for the purpose of executing an area restriction under Section 163 BNSS, the individual must have been properly identified in advance, with the definition of who can be identified expanded to include digital, freelance etc journalists. Two, a proposed media-access right could be inserted by Parliament or state legislatures directly into the BNSS provision, thus free from the need for judicial ad hoc definition. Three, a dedicated, judicially approved seizure protocol, with, for example, police required to seek judicial permission in advance before confiscating or deleting any camera, cell phone or footage, loosely modelled on the “excluded material” category under the PACE Act, would abridge the equipment-seizure loophole. Four, the Press Council Act, 1978 should be amended to permit it to recommend interim legal aid plus compensation to the National/State Human Rights Commission (NHRC/SNHRC) in cases of verified press injury while covering large news events under section 14 of the Act of a cost-effective program to accelerate redress, outside of traditional writ proceedings.
CONCLUSION
The Indian constitutional order has never been short of the substantive right-the barest material for protecting the presence of journalists at protests–Article19(1)(a), once read with Romesh Thappar, Anuradha Bhasin, and Ramlila Maidan, has for a nucleus the neat idea that there location of a reporter at an assembly is a different exercise of a fundament alright, whereas the presence of a reporter at an assembly is only an accessory condition of police grant, and thus may be denied to the extent authorized by law. What has lagged is the empirical application of that doctrine in rules and matters that a policeman at a barricade may understand at and apply in the field without calling a writ court weeks later. The BNSS was an excellent time to do this. This was an excellent time to close the gap with explicit statutory language. But this was a time missed.
The answer will probably not be found in single, landmark decisions. The road forward is likelier to be paved, step-by-step, by an administrative standing order here, an accreditation scheme there, a set-aside seizure protocol for press footage, or a streamlined, expeditious compensation process for journalists injured while doing their job. Until those steps are taken, the press’ right to stand on the periphery of a demonstration and simply observe, videotape, and relay the right under the Constitution to be not only lawful, but operationally present on the line will be legally sound in theory but operationally tenuous in practice.
BIBLIOGRAPHY
Cases
- Anuradha Bhasin v Union of India (2020) 3 SCC 637.
- Brij Bhushan v State of Delhi AIR 1950 SC 129.
- In Re: Ramlila Maidan Incident v Home Secretary, Union of India (2012) 5 SCC 1.
- Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
- Nilabati Behera v State of Orissa (1993) 2 SCC 746.
- Romesh Thappar v State of Madras AIR 1950 SC 124.
- Sahara India Real Estate Corporation Ltd v Securities and Exchange Board of India (2012) 10 SCC 603.
Legislation
India
- Code of Criminal Procedure 1973.
- Constitution of India.
- Delhi Police Act 1978.
- Press Council Act 1978.
- Registration of Press and Periodicals Act 2023.
- The Bharatiya Nagarik Suraksha Sanhita 2023.
- Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act 1955.
United Kingdom
- Police and Criminal Evidence Act 1984.
Government Documents and Guidelines
- Ministry of Information and Broadcasting, Central Media Accreditation Guidelines (Government of India, as periodically revised).
- Press Council of India, Guidelines on Safety of Journalists.
- Press Council of India, Norms of Journalistic Conduct (latest edn).
[1] Romesh Thappar v. State of Madras, AIR 1950 SC 124; Brij Bhushan v. State of Delhi, AIR 1950 SC 129
[2] The Constitution of India, Arts. 19(2) and 19(3)
[3] The Bharatiya Nagarik Suraksha Sanhita, 2023, ss. 148 and 163, in force from 1 July 2024, replacing ss. 129 and 144 of the Code of Criminal Procedure, 1973.
[4] The Press Council Act, 1978, ss. 13 and 14; Press Council of India, Guidelines on Safety of Journalists
[5] The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955.
[6] Romesh Thappar v. State of Madras, AIR 1950 SC 124.
[7] The Constitution of India, Art. 19(1)(b).
[8] The Code of Criminal Procedure, 1973 (as applicable prior to 1 July 2024), s. 144.
[9] The Delhi Police Act, 1978.
[10] Ministry of Information and Broadcasting, Central Media Accreditation Guidelines.
[11] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
[12] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1
[13] Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1.
[14] Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India, (2012) 10 SCC 603.
[15] The Registration of Press and Periodicals Act, 2023, replacing the Press and Registration of Books Act, 1867.
[16] Police and Criminal Evidence Act 1984 (UK), s. 13 and Sch. 1
[17] Nilabati Behera v. State of Orissa, (1993) 2 SCC 746
