Needless to say, media and judiciary form the nucleus of any functional democracy as they put checks and balances on the government. But sadly, what the people of this country are witnessing in the recent time is that both the key institutions have deteriorated.
On the one side, sanctity of news, veracity of facts, conscientious journalism have been sacrificed at the altar of profits and more money by a large section of media, including TV news channels, and on the other, the legal harassment of journalists who do not toe the official line increased. Mere tweets attract sedition charges.
2020 saw a rise in the use of draconian laws such as UAPA to silence criticism, especially sedition laws, in many cases in the context of coverage of COVID-19, anti-CAA and the ongoing farmers’ movement, where the government is said to have sought to control the narrative. Senior journalists like Rajdeep Sardesai, Siddharth Varadarajan, Vinod Jose, Anant Nath and others are targeted.
One of the significant cases is that of journalist Siddique Kappan, who has spent more than 100 days in custody. The Supreme Court has adjourned a habeas corpus challenge to Kappan’s arrest six times. Kappan was arrested on October 5 last year while travelling to Hathras in Uttar Pradesh, to cover the gangrape and later death of a Dalit woman, whose story sparked widespread outrage. Kappan was charged under several sections of the Indian Penal Code, along with the Unlawful Activities (Prevention) Act (UAPA) and the Information Technology Act.
The continued harassment of independent journalists has attracted the attention of the world. Recently two leading global media freedom organisations – the International Federation of Journalists (IFJ) and the International Press Institute (IPI) – have issued a joint call on the Indian authorities to take urgent action to prevent the increasing use of sedition laws and other legal sanctions to threaten and silence independent journalists.
While on the flip side, a large section of the fourth pillar of democracy has itself become a threat to democracy by selling its soul for money.
Before, the general election 2019, an investigative news portal Cobrapost did Operation 136, an undercover sting operation on the biggest newspapers and TV channels where top executives to owners of the media entities agree to not only spread communal disharmony among the citizens but also tilt the electoral outcome in favour of a particular party for the right price.
It is not a secret that much of the media has already been compromised, and subservience to the powers that be.
There is a clear distinction between pro-government media and independent media.
When asked, is it because of an overwhelming domination of some born-privileged upper classes (castes) or lure of money, Hartosh Singh Bal, Political Editor of Caravan magazine, told Radiance Viewsweekly: “I think both things are at play. We are living in a semi-liberalised economy in which media ownership is in the hands of people of big businesses and they have to do what the government wants. There is no protection from ownership for journalists. What owners decide ‘journalist does it’.”
On the monopoly of media ownership, the noted commentator opined that the ownership is largely concentrated in Marwaris and Baniyas and they have been supporters of Hindutva right from the beginning of the 20th century. They funded the printing presses that spread Hindutva. So it is both an ideological and financial decision, for ownership of media is responsible for the present sorry state of the media.
How much the Indian media is diverse and representative? In this regard, Oxfam India, in partnership with media watchdog Newslaundry, has done a sample survey looking at English and Hindi news industries in 2019 titled ‘Who Tells Our Stories Matters: Representation of Marginalised Caste Groups in Indian Newsrooms’. The survey findings were damning.
The most striking one is: “Of the 121 newsroom leadership positions – editor-in-chief, managing editor, executive editor, bureau chief, input/output editor – across the newspapers, TV news channels, news websites, and magazines under study, 106 are occupied by journalists from the upper castes, and none by those belonging to the Scheduled Castes and the Scheduled Tribes.”
It is said news cannot reflect society unless newsrooms do.
Pointing towards this malaise, Engineer Mohammad Salim said it is a matter of grave concern that the media is not doing its duties it is supposed to. Engineer Salim, who is Vice President of Jamaat-e-Islami Hind, said it is unfortunate that a large section of media has become a tool of false propaganda. However, there are some media outlets, particularly social media and digital media, that are doing responsible journalism, he added.
India’s media universe is vast, perhaps the biggest in the world. There are 850 TV channels, including 178 television news channels. According to the Registrar of Newspapers, as on March 31, 2018, India had 100,000 publications and these had a circulation of 240 million. In addition to this, there are 303 million Facebook users and approximately 300 million WhatsApp accounts.
But not surprisingly, India ranks 140 out of 180 countries for press freedom, behind violence-ridden Afghanistan and South Sudan in the ‘Reporters Without Borders’ report. And things are getting steadily worse: In 2002, India had ranked 80 of 139 countries surveyed.
As far as the role of the judiciary is concerned, the things, unfortunately, are not rosy. In recent years, its many decisions have come under sharp scrutiny.
The world had witnessed the unprecedented press conference held by the then four senior Supreme Court judges, warning that everything was not right in the temple of justice.
Even Supreme Court judges are reported to have openly heaped praises on the rulers of the day. Recently Justice MR Shah described Prime Minister Narendra Modi as “our most popular, loved, vibrant and visionary leader”. While last year, Justice Arun Mishra was reported to have lavishly praised the PM.
However, independent commentators pointed out that when it comes to Hindutva politics, the judiciary plays an active role and does not defend the Constitution. They cite many cases from Babri Masjid judgment to CAA, electoral bonds, Article 370, and habeas corpus petitions pending for years.
Hartosh Singh Bal opined, “Much of it is available in the public eye. People have raised questions. One would prefer a more active judiciary in the defence of the Constitution.”
“Beyond that it is difficult to say what one actually feels because of the very nature of contempt law. Ideally one would expect under current circumstances as every other institution has collapsed so badly, the judiciary is to step up and take a role. We are still waiting for that to happen,” he added.
Supreme Court advocate MR Shamshad said as per the constitutional norm, there has to be a culture of Secularism in the law-making process.
“The Supreme Court has held that Secularism is the basic Structure of the Constitution. Hence one can say it is a non-negotiable concept and the Constitutional courts are obliged to ensure that basic freedom of an individual is not compromised merely because some legislature has made some law on the basis of religious belief.”
Speaking with Radiance Viewsweekly, Shamshad said the court’s verdict in regard with personal liberty has disappointed on many occasions. Be it the High Court’s verdict in Faruqui case or many other arrests under Love Jihad law are a few examples, said the Advocate.
Another serious problem is that the courts are not consistent on similar issues. Merely small distinguishing facts or small legal technicalities should not make different outcomes of the case and Judgments should not differ if the Benches are different, he opined.
Echoing similar sentiments, another advocate of Supreme Court Sarim Naved said no, not in communal terms. What, however, cannot be denied is that the protection of individual rights from State action does not enjoy the primacy that it ought to.
We are used to cases where bail is denied mechanically, where rules of evidence are not as strictly enforced as they ought to be, and where judges seem reluctant to act against police officers who have violated the law. This is a general malaise, not only a communal one. Of course, Muslims who face terrorism charges and cases related to state security face these issues more often as these kinds of cases are often made against Muslims, more than the general populace, he said.
On being asked if people are losing faith in the justice delivery system, Naved said there is a general impression that law and order, and its enforcement, is becoming increasingly fragile. This is a very dangerous situation. If there is no faith in courts then things could be really problematic.
He said things are better in Delhi like interacting with clients in custody, and getting minor relief for persons in custody and others but it is no so outside Delhi.
On sensitive cases like UAPA, he said the biggest problem is the speed of the trial, years go by, without the trials progressing, and an accused, out of desperation, starts pleading guilty and this is the fate of the majority of UAPA cases these days.
It is the duty of the judiciary to help the victims and feel him at ease, said Engineer Salim. There are shortcomings in the delivery of justice and courts delivered certain judgments in favour of the government, he further pointed out but said we still put faith in the judiciary.
Arguably, the functioning of the media and judiciary has created doubt about the future of democracy in the minds of people.
However, Hartosh Singh Bal said the problem is not about democracy as Modi has a popular mandate.
“The problem is constitutional democracy mandated by the checks and balances of the Constitution. These are failing us. The government is not interested in remaining within the confines of what constitutional checks and balances dictate.”
Much of this has gone unchallenged because the institutions of constitutional democracy that are meant to function as a check on executive overreach have largely given way. Therefore, he warns that India is running into huge problems to survive as constitutional democracy.