Agar Firdaus Bar Roo-E Zameen Ast, Hameen Ast-O Hameen Ast-O Hameen Ast

The statement above implies if at any time there is paradise on earth, it's here, it's here, it's here. It’s already been a year when India has scrapped a standardize law on August 5, 2019 that grants the special status to Indian-administered Kashmir yet the region is amid intolerable situation. When the pandemic has made access to the internet crucial for information, communication, education, and business, still the authorities have enacted Media Policy, 2020 in Jammu and Kashmir.

From the decades now, the Hon’ble Supreme Court and the other courts have emphasized on the importance of Right to freedom of press. Despite such attempts, authorities of Jammu and Kashmir has enacted the policy in such a manner that it exactly restricts the right of media in the state of Jammu. Such policies not only attract violation of Fundamental Rights but also proves that Doctrine of colourable Legislation is still practiced in India.

Through this study, a critical analysis of the Policy will be done.

Freedom of press

It is not new that Freedom of press and media is enshrined under Article 19 (1) of Constitution of India. The Hon’ble Supreme Court of India has time and again emphasized on the importance of freedom of press and media for a country. To begin with, one of the first cases is Romesh Thappar  in which court held that:
freedom of speech and of the 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 processes of popular government, is possible. [i]

And thus very narrow and stringent limitations have been made permissible to restrict such freedom. In the light of same principle and in the same year another case underlined the importance of freedom of press and media. [ii]

It was observed by the court in the case of Sakal Papers that:
right to freedom of speech and expression includes right to publish and circulate one's ideas, opinions and views with complete freedom and only those restrictions which is mentioned under Article 19(2) can be imposed on such right. [iii] It was also addressed by the court that such freedom cannot be curtailed in the interest of general public. In another case the court held that The Press has the right of free propagation and  free  circulation without any  previous  restraint  on publication. [iv]

Highlighting the importance of press and media to educate citizen of a court, the court in the case of Indian express newspaper held that The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments.[v]

Moving a step ahead, the court in one of the landmark cases also held that one-sided information, disinformation, misinformation and non- information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations. [vi]

Lastly but the most important case for this study is the decision of the court in the case of Sahara India, in which the court held that:
Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population.[vii]

Through all these cases it can be concluded that the right of Freedom of expression to media and press is not just for their own good but it is also very crucial for a democratic country to place intact and it has much wider role in educating the citizens of the country.

What is wrong with media Policy, 2020

In the country where the Supreme Court itself has from time and again emphasized on the importance Freedom of press, government of Kashmir state brought the most debatable policy i.e. The Media Policy, on June 20, 2020. It was aimed to ensure public trust and make people aware about the government policies and functions.[viii] However, the rules and restrictions under the policy could raise your eyebrows against the intentions of the legislature.

Following are the three important reasons why:

1. The first and foremost reason is one of the rules of policy which states that content of any form of media shall be examined by Departemnet.[ix] IPR against any fake news, plagiarism and unethical or anti-national activities. But the policy has failed to describe what is unethical, fake or anti-national activities. What is more controversial is that the policy has restricted the right protected through Article 19 (1) (a) through the methods which is not covered under Article 19 (2). Unquestionably it is evident that a state can impose only those reasonable restrictions which are covered under Article 19 only. Nonetheless, this policy has imposed restrictions through these vague terms which ultimately gives a wide power to the Department.
    
2. Another point of consideration is that this policy lays down a background check of the journalists as a pre-conditions while finalizing accreditations. This rule effects of the autonomy of the editors. [x]
    
3. Tailor stitched news:
   The policy has given numerous powers to the DIPR be in the form of monitoring or supervision, the policy has made sure that the audience will receive a tailor stitched news. Every information provided to you is scrutinised beforehand by the DIPR. Hence this certainty will create doubt on the authenticity of the news because there might be a possibility that Department will focus on providing a good picture of the government in power. Thus, there is no wrong in saying that this is an example of Doctrine of colourable legislation of power, a doctrine which is condemned by the courts in India. [xi]

There are too many rules and restrictions for the media and too much of supervision by the department. Thus, the policy is subject of backlash since the time is it being implemented. [xii]

Scraping of Article 370

Well, all that we need to know about the Article 370 is that, it was a temporary provision which granted the special autonomous status to Jammu and Kashmir and had been accorded special status under Part XXI of the Constitution, which deals with Temporary, Transitional and Special provisions.[xiii]

The article, which came into effect in 1949, which exempted the Jammu and Kashmir state from the Indian constitution and allowed the Indian-administered region jurisdiction to make its own laws in all matters except finance, defence, foreign affairs and communications and the Parliament needs the state government's concurrence for applying all other laws.[xiv] It also established a separate constitution and a separate flag and state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, which simply meant that the residents of the state live under different laws as compared to other Indians. [xv]

Moving to the Article 35A having been introduced through a Presidential Order in 1954, is a unique provision of the Constitution of India in itself and stanches from Article 370 and one cannot find Article 35A after Article 35 in the Constitution but can be seen in Appendix I of the Constitution.

Now, authoritatively speaking, the Article 35A in quintessence, gives the J&K legislature full discretionary powers to decide who 'permanent residents' of the state are, gives them special rights and privileges in employment with the state government, acquisition of property in the state, settling in the state, and the right to scholarships and other forms of aid that the state government provides and it also allows the state legislature to impose any restrictions upon persons other than the permanent residents regarding the above. [xvi]

Conclusion
The Media Policy, 2020 adds to the saying that laws in India are enacted but never implemented. The study has shown that how the policy has indirectly tried to create goodwill of the government. The government has controlled the most important tool of democracy and yet no case till now on the court.

No news channel has projected this news or no discussion took place for such act of the government, which ultimately raises the several questions such as can something which is highly regulated by government show any negative aspect of the government? Or whether State of Jammu and Kashmir is really accepted or it was just another political agenda of the government?  The answers are still unknown.

End-Notes:

1. Romesh Thappar v. The State of Madras 1950 AIR 124.
2. Brij Bhushan and Another v. The State of Delhi 1950 AIR 129.
3. Sakal Papers (P) Ltd., and Others v. The Union of India 1962 AIR 305.
4. Bennett Coleman & Co. & Ors v. Union of India & Ors 1973 AIR 106.
5. Indian Express Newspapers v.  Union of India & Ors. 1986 AIR 515.
6. Union of India v. Association for Democratic Reforms and Another 2002 (3) SCR 294.
7. Sahara India Real Estate v. Securities & Exchange Board Of India (2012) 10 SCC 603.
8. https://kashmirlife.net/jammu-and-kashmir-media-policy-2020-236330/.
9. Id.
10. https://scroll.in/article/964900/jammu-and-kashmirs-new-media-policy-is-aimed-at-demolishing-the-local-press-editors-say.
11. The State of Bihar v. Maharajadhiraja Sir Kameshwar 1952 1 SCR 889.
12. Refer, https://www.thehindu.com/news/national/jk-press-demands-roll-back-of-new-media-policy/article32003901.ece.
13. Art. 370  of The Constitution of India.
14. Government removes Article 370 and 35A: All you need to know, https://economictimes.indiatimes.com/news/politics-and-nation/govt-moves-to-scrap-article-370-all-you-need-to-know/what-is-article-370/slideshow/70531424.cms.
15. Kashmir special status explained: What are Articles 370 and 35A? https://www.aljazeera.com/news/2019/08/kashmir-special-status-explained-articles-370-35a-190805054643431.html.
16. Faizan Mustafa, Explained: What are Articles 370 and 35A? https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/.

Written By:

1. Medha Dwivedi &
2. Darshita Sethia