Illegal Censorship of Kashmir Media

According to media reports, the central government has decided to restrict advertisements to the English newspapers from Kashmir which take an antagonistic line regarding the government.

According to a report in The Telegraph, “The Kashmir Editors Guild, which represents newspapers published in the Valley, said the administration had not given government advertisements since February 16 to Greater Kashmir, the most widely read English daily in the Valley, and Kashmir Reader. A guild spokesperson said neither of the newspapers had received any formal communication from the administration on the advertisements, nor had they been offered an explanation on why they had not received any ad for six days. The two newspapers usually take a pro-Kashmir line, reporting heavily on human rights violations.”

This curtailment of ads to pressurise certain media houses to toe the sarkari line, especially when it comes to Kashmir, is nothing but illegal censorship of the press, as has been held by a number of high courts, and even the Supreme Court.

Advertisement allocation is necessary for newspapers to reduce their cost of production. Declining advertising revenues would force publishers to pass on the cost to the readers, which would negatively impact circulation. This practice has been held to be against the ‘Freedom of Press’.

While not explicitly enumerated, Freedom of Press is a constitutionally protected right under Article 19 of the Constitution (Romesh Thappar vs. State of Madras).

The case of Rajasthan Patrika

In 2016, Rajasthan Patrika, a highly popular newspaper, saw a sharp decline in government advertisement allocation over the last year. According to reports, the alleged reason for the decline was the political ideology of the Patrika, which did not favour the state government. The state government, however, claimed that the decline was necessary to correct the existing imbalance in advertisement allocation. The “fight for survival” drew to an end in September 2016 when the Supreme Court ordered the Rajasthan government to allocate a higher percentage of advertisements to the Patrika.

The case of Ushodaya Publications

Like Rajasthan Patrika, Ushodaya Publications, a Supreme Court case, dealt with a similar set of facts in 1981. In Ushodaya Publications vs. Government of Andhra Pradesh, the petitioners claimed that the ‘Advertisement Procedure’ stipulated in the Government Order served as a restraint on the Freedom of Speech and Expression under Article 19 of the Constitution. The Order specified certain production and circulation standards, which the publishers considered restrictive. The petitioners also claimed that absence of a “right to notice and hearing…a machinery for redress or correction of an adverse decision by way of appeal or revision” rendered the system vague and arbitrary. The courts, however, held that the mechanism was not unconstitutional, and merely streamlined the advertisement allocation process through the Director of Information and Public Relations. The discretion of the Director was not discriminatory since advertisements were ‘commercial speech’. Advertisement allocation was not considered integral to the Freedom of the Press.

The new DAVP Policy

Roughly three decades later, the freedom of press-related concerns raised in Ushodaya remain unaddressed.

The rules governing advertisement allocation are overlooked by the Directorate of Advertising and Visual Publicity (DAVP). The DAVP is a nodal agency through which government bodies streamline the advertisement allocation process. In June 2016, the Information and Broadcasting Ministry had published a new policy for the DAVP , the National Advertisement Policy. Among other concerns, the Policy was introduced to “focus on transparency and equity in release of government ads”.

The Policy allocates ads to ‘small’, ‘medium’ and ‘big’ newspapers, based on their circulation numbers. Following a ‘scorecard’ system, the higher number of points a newspaper has, the greater percentage of ads it will be allocated. Rajasthan Patrika happens to be an ‘empanelled’ newspaper which would score highly. (It is a member of the Audit Bureau of Circulation and is one of the most widely read papers in the country, which leads us to believe that it must be widely circulated.)

The process of ‘empanelling’ is multi-pronged and extensive. With six criteria, ranging from approval from the Audit Bureau of Circulation and the Registrar of Newspapers of India to an annual subscription payment to the Press Council of India, only select newspapers are empanelled. The policy faced criticism from small and medium enterprises for favouring larger newspapers. The renewed empanelling process would seemingly favour existing members of the ABC/RNI.

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Criticism of the Policy

In addition to the criticism faced by smaller newspapers, the policy has a few inherent flaws. Similar to the Government Order in the Ushodaya case, the DAVP Policy also does not have a redressal mechanism. The ‘minimum print area’ criterion under Clause 11 of the Policy is vaguely reminiscent of Bennett Coleman vs. Union of India where the permissible number of pages were regulated under the Newsprint Policy of 1972-73. The courts in this case held the limit on the number of pages to be unconstitutional. ‘Minimum print area’ could severely restrict circulation of papers, as well.

Several of the clauses rely on being vetted by the Audit Bureau of Circulation (ABC) or Registrar of Newspapers for India (RNI). These agencies audit the circulation of and verify the legitimacy of the newspapers. The ABC also requires a newspaper to be registered under the RNI to be considered for membership at the bureau. However, reports of fake newspapers/journals registered by the RNI were afloat in 2015.

These ‘fake’ publications, which had either printed the same content multiple times or had not printed at all, were being allocated government ad revenue. A huge discrepancy between the number of newspapers circulated in the districts and those empanelled by the DAVP was found. Amidst allegations of corruption, DAVP and RNI’s conduct renders the whole system of ‘empanelling’ questionable.

The ABC Manual does not show too clear a picture, either. Clause 14.7 states that non-submission of books and records “will lead to non–consideration for certification”. While in the same document, Article 5A gives ABC the authority to revoke membership in the event of non-submission of circulation figures. Similarly, in the case of the ‘fake’ publications, the RNI admitted they were ‘not empowered to take action’.

The Ganashakti Case

The decision of the Calcutta High Court on 27 February 2015 in the case of Ganashakti, a mouthpiece of the Communist Party of India (Marxist) and a registered newspaper shows that the governments cannot muzzle the press by squeezing ads just because a publication professes an ideology it is opposed to.

In this case, the court held that “Government advertisements, conferment of titles on editors and proprietors of newspapers, inclusion of press barons in cabinet and inner political councils etc. constitute one method of influencing the press. The other kind of pressure is one of using force against the press. Enactment of laws providing for pre-censorship, seizures, interference with the transit of newspapers and demanding security deposit, imposition of restriction on the price of newspapers, on the number of pages of newspapers and the area that can be devoted for advertisements, withholding of Government advertisements, increase of postal rates, imposition of taxes on newsprint, canalization of import of newsprint with the object of making it unjustly costlier etc. are some of the ways in which Governments have tried to interfere with freedom of press.”

“It is with a view to checking such malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it. It is, therefore, the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate."

The case of Kashmir Times

Various media reports [see here and here] show that the media in Kashmir has always been a soft target as far as the government censorship is concerned, which has severely compromised journalism in the state. Only a few have experienced this more than Anuradha Bhasin Jamwal, the executive editor of Kashmir Times, whose paper was almost run to the ground due to withdrawal of government advertisements. Talking about the government’s vindictiveness, Jamwal told Newsclick that since the end of 2018, this has caused the Dogri and Hindi editions of the paper to shut down. The government has been antagonistic since 2010, and this has only been aggravated post 2014. The ads policy is whimsical, rates are never rationalised, favours are doled out, and punishments are meted out willy nilly, she said.

The government’s latest move clearly is in the teeth of the law. Will the Editors’ Guild of India speak up?

Saurav is an independent journalist based out of Delhi, and specialises in reporting on legal, human rights and gender issues. He earlier used to teach media law and jurisprudence in Bombay and in Pune. He tweets @SauravDatta29.

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