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´┐Żs 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´┐Żble 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´┐Żble 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´┐ŻRomesh Thappar
´┐Ż´┐Żin 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
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´┐ŻSakal Papers
right to freedom
of speech and expression includes right to publish and circulate one's ideas,
opinions and views with complete freedom´┐Żand only those restrictions which is
mentioned under Article 19(2) can be imposed on such right. [iii]´┐ŻIt 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´┐Ż free´┐Ż circulation without any´┐Ż previous´┐Ż restraint´┐Ż on
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]
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.´┐Ż[vi]
Lastly but the most important
case for this study is the decision of the court in the case of´┐ŻSahara 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]´┐ŻHowever, the rules and restrictions under the policy could
raise your eyebrows against the intentions of the legislature.
Following are the three important reasons why:
- 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]´┐ŻIPR
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.
- 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]
- 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
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.´┐Ż[xii]
Scraping of Article 370
Well, all that we need to know about the Article 370 is that, it was a
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]´┐ŻIt 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.
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]
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.
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?´┐Ż The answers are still unknown.
- Romesh Thappar v. The State of Madras 1950 AIR 124.
- Brij Bhushan and Another v. The State of Delhi 1950 AIR 129.
- Sakal Papers (P) Ltd., and Others v. The Union of India 1962 AIR 305.
- Bennett Coleman & Co. & Ors v. Union of India & Ors 1973 AIR 106.
- Indian Express Newspapers v. ´┐ŻUnion of India & Ors. 1986 AIR 515.
- Union of India v. Association for Democratic Reforms and Another 2002
(3) SCR 294.
- Sahara India Real Estate v. Securities & Exchange Board Of India´┐Ż(2012)
10 SCC 603.
- The State of Bihar v. Maharajadhiraja Sir Kameshwar 1952 1 SCR 889.
- Art. 370´┐Ż of The Constitution of India.
- 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.
- Kashmir special status explained: What are Articles 370 and 35A?
- Faizan Mustafa, Explained: What are Articles 370 and 35A? https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/.
- Medha Dwivedi &
- Darshita Sethia