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Third Wheel Moving The Fourth Wheel

By Saju Jakob, Nancy Shah & Ekta Bharati

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“India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal” Justice Chandrachud in Arnab Goswami’s case.

The Annual World Press Freedom Day is celebrated on 3rd May and Indian Supreme Court has moved the fourth wheel of our democracy to one more step ahead by stating that “free citizens cannot exist when the news media is chained to adhere to one position,” but gently reminded the journalists of its reasonable restrictions too.

Though the Supreme Court extended the interim protection granted to Arnab Goswami on April 24 by three more weeks, it rejected the plea to transfer the case to CBI and also to quash the FIR. The top court held that “The airing of views on television shows which he hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a)” but “the exercise of that fundamental right is not absolute and is answerable to the legal regime enacted with reference to the provisions of Article 19(2)”.

The Supreme Court of India has never missed an opportunity to ensure the freedom of Press, one such case is when it heavily criticized the arrest of journalist Prashant Kanojia who was kept in custody for 11 days without due process, by Uttar Pradesh Police for posting a video wherein a women claimed to have sent a marriage proposal to UP’s CM Yogi Adityanath. He was released from custody observing that liberty guaranteed under the fundamental rights is sacrosanct and that free speech and criticism on social media cannot be choked to incarceration.

Similarly, the Hon’ble Supreme Court in Anuradha Bhasin v Union of India, pertaining to the restrictions imposed in Jammu & Kashmir wherein mobile phone networks, internet services and landline connectivity were suspended, held that freedom of speech and expression includes the right to disseminate information and that a wider range of circulation of information or its greater impact cannot restrict the content of the right nor can justify its denial.

Whereas the Apex Court always ensures to uphold the values of freedom, fourth pillar of the democracy also values the spirit of the freedom in its right sense. Just like in 2006, Indian Express handed over a copy of the note written by the then President of India to The Hindu to publish, as publishing the same by the Indian Express, would have been considered as ‘vengeful’, for the Express was evicted, on a decision by a committee, headed by a Judge, who was the subject matter of the said note. This incident exemplifies the reporting of sensible journalism and its reaching to the people, despite the private interest of the parties involved.

Though the conflict between various wheels of vehicle of democracy is not unknown everywhere across the world, the well-known Pentagon case of 1971, which upheld the First Amendment of US Constitution and shows the paramount importance of Freedom of Press, is a display of valiant and true journalism and an instance of the judiciary extending its protective hand to the responsible job of journalists.

The Pentagon papers, a study of US political and military involvement in Vietnam War, was prepared on the instructions given by the then Defense Secretary Robert McNamara in accordance with the direction of John F Kennedy. The US Defense Department has described it as “highly secretive,” but was leaked by a US military officer Daniel Ellsberg, who handed over the papers to Neil Sheehan, a journalist of the New York Times. It is no exaggeration to say that the world’s most powerful government was shaking like a rabbit, when the Pentagon Papers were published by the New York Times in June 1971. Richard Nixon, the then President of the United States, was shocked when The Times had already declined the request of the attorney general to not publish the information. The Nixon Administration went to court, claiming that the New York Times violated national security. The court blocked the publication of the Pentagon Papers.

This is where the great twist in journalistic history took place. These papers, with knowledge of the New York Times, were handed over by Mr. Ellsberg to the editor of Washington post, Benjamin Bradlee through Mr. Ben Bagdikian of Washington Post. The secretive information with respect to the Pentagon Papers was dynamite in all respects. The Washington Post started publishing its own series of articles based upon the Pentagon Papers, to which Assistant U.S. Attorney General William Rehnquist objected and sought an injunction in U.S. district court. Judge Murray Gurfein refused an injunction, stating that “The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions.” The government decided to go against the decision, and filed appeal.

Ms. Katherine Graham, the then-owner of the Washington Post, heading the family business, was really upset and agonized as to what to do next. The lawyers have advised Katherine not to publish the report and warn that the Washington Post would be eliminated if the report was published. The Nixon administration was putting so much pressure on her and the press. Bradley reminds Katherine that if we did not publish it would be a breach of duty to the country. Her friend Robert McNamara advises Katherine not to publish it, and face the wrath of the American Administration, if it was published. He reminded Katherine that Nixon would never forgive this and she could not cope up with the consequences. Katherine believed that it is her duty to uphold the people’s right to know the truth and finally she published it.

The above issue was placed for hearing before the US Supreme Court within a few weeks of emotionally charged legal battle. And on the last day of June, 1971, with a ratio of 6:3, the honorable US Supreme Court upheld the constitutional validity of First Amendment and settled a historic confrontation between the executive and fourth estate. Though the judgement was divided with nine independent opinions, rights under First Amendment was upheld and protected.

Such right to fearlessness of the Press is embedded in the constitution of Germany, which is the economic motor of European Union. Freedom of opinion and freedom of the press are considered precious constitutional values. As a fundamental element of democracy, they are anchored in Article 5 of the German Constitution (Basic law) which is part and parcel of their perpetuity clause. But Germany also has a press code, by which Publishers, editors and journalists have a great responsibility towards society. They inform the public only the truthful facts, contribute to opinion formation and expose abuses. The journalistic and ethical standards for their work are laid down in the press code. The German Press Council is responsible for ensuring strict observance of such code and enforcing it strictly. Readers attach great importance to the press code. According to a survey conducted by the Allensbach opinion research institute, nine out of ten German citizens consider high-quality truthful journalism is important for vibrant democracy. The OSCE has also praised Germany’s high journalistic standards especially for filtering the fake news. Hence, individual dignity and freedom is inviolable and guaranteed as the first article in the Constitution and can’t be made subject to fake news. Human dignity is placed even toper than right to life. Germany has had a tainted history when it comes to guaranteeing freedom of responsible journalism. Media was closely  controlled under the Nazi regime in the 1930s and 40s, and then in East Germany under the communist government. Now the country is particularly vigilant about preserving its press freedom to its true spirit. Freedom of press in the European Union is a fundamental right that applies to all member states and its citizens, as is well guaranteed in the EU Charter of Fundamental Rights and the European Convention on Human Rights.

Whereas the Right to freedom of Press is undebatable as it is a cornerstone of democracy, its independence has always been ensured by law and upheld by Judicial Systems of the world, however it is subject to the reasonable restrictions of responsible journalism as observed by the Hon. Supreme Court of India in a recent case, where Central Government moved SC with a prayer to censor news coverage of COVID-19 pandemic. The Apex Court held that it cannot halt free discussion about the pandemic, however, advised the media to maintain a strong sense of responsibility while reporting. In these hours of distress when the only source of information is the press and media, the importance of its independence and fearless working couldn’t be emphasized more. An informed citizen forms the backbone of a democracy. With this greater role of the media, the need for its accountability and professionalism need not be highlighted. In a democratic free society, no freedom can be considered absolute. It is subject to rule of law and reasonable restrictions. With more rights given to the journalists, more responsibility coupled with greater wisdom and integrity should govern the fourth pillar, which will have its direct impact on the growth of wheels of democracy.

The Author Mr Saju Jakob, LL.M. MBA (generally known as Lily Thomas Junior) is practicing in the Supreme Court of India and practicing as Solicitor in Europe. He is a eminent member of the UK and German Courts with offices in Delhi & Europe. He assisted by Adv Nancy Shah & Adv Ekta Bharati.

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