Editor’s Guild of India writes to Amit Shah over 'misuse' of new criminal laws

The Editors Guild of India's on July 29, wrote a letter to Home Minister Amit Shah raising concerns about the new Criminal Laws with respect to press freedom, journalistic work and an additional layer of safeguard.

The apex body representing senior editors in the country said that freedom of the press is a facet of the fundamental right of free speech and expression which is protected under Article 19 (1)(a) of the Constitution of India. 

The members of the press have a duty to inform the citizenry and the press acts in the capacity of a trustee or surrogate of the public, as the "eyes and ears of the citizenry." A free press is the hallmark of a democracy and deserves to be shielded from frivolous prosecution for acts done in the course of their duty.

“We are writing to bring to your notice, a long standing concern of ours, with respect to the manner in which criminal laws have been used against journalists, as tools to intimidate and harass them,” read the letter.

It further reads that over the years and under successive governments, many provisions under the criminal code, the so-called offensive speech laws in IPC- sections 153A and B, 295A, 298, 502, and 505, have been liberally used to file FIRS against journalists whose reporting has been critical of governing establishment. 

The letter states that this has been done by governments across states and party lines. “Journalists, as part of their professional duty, are meant to report on sensitive issues, throw light on uncomfortable facts, and speak truth to power. They literally have to play with fire as part of their professional work.

And therefore, it has become a norm under several governments, both at centre and in states, and across party lines, to have criminal complaints filed against journalists by seemingly non- stage agents, but who are acting with full support of the state machinery, and those complaints are readily registered as an FIR, with a possibility of arrest.”

Letter also highlighted that in some cases, journalists have been imprisoned for long durations, as the cases have moved at a snail's pace in courts, and in others, while there may not have been an arrest, yet the process of defending against frivolous complaints has itself become a punishment.

The apex body felt that the new criminal laws, which were notified earlier in the month, further expands the powers of law enforcement agencies.

According to the letter, as it is, between 2019 and 2023, a slew of legislation has been passed by Parliament dramatically expanding the reach of criminal laws by way of amendments to existing laws or by way of introducing new statutes outright.

Expansion of substantive criminal law has often been accompanied by procedures designed to expand police powers and truncate civil liberties. Examples include the amendments to the Prevention of Money Laundering Act 2002 [PMLA]; the Unlawful Activities (Prevention) Act 1967 [UAPA]; the Foreign Contributions (Regulation) Act 2010 [FCRA], and; the introduction of the Criminal Procedure Identification Act 2022 [CPIA].

Now, with the notification of the Bhartiya Nyaya Sanhita 2023 [BNS] and Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] to replace the Indian Penal Code 1860 and Criminal Procedure Code 1973, respectively, apex body feel there is even greater cause of concern.

The reason the apex body had specifically raised these is because they fear all these provisions can be potentially used against journalists, as has been the case in the past under IPC as well as Cr.P.C. 

The Guild urged a thorough review of these criminal laws from this perspective and suggested substantive consultation with organisations like guilds in this regard.

A case for journalistic exception Guild also is of the opinion that given the precedent in the manner in which criminal laws have been used as tools of harassment and intimidation against journalists, with a potential of setting a chilling effect, there is a legitimate case for a journalistic exception in the registration of FIRS.

Therefore Guild strongly feels that before a criminal complaint is registered as an FIR against a journalist, with a reference to a journalistic work done by them, there be an additional and thorough layer of review.

“It is our strong belief that there is a need for a deep consultation and formulation of some set of guidelines for regulating prosecutions against members of the press/media for actions in the course of their duty. While this will require a detailed review, we would like to propose a mechanism whereby any such complaint against a member of press is reviewed by a high ranking Police Officer, and that it is brought to the knowledge of Press Council of India, for an opinion on whether further investigation of the complaint/information would be an unreasonable burden on the freedom of profession and freedom of expression of the alleged offender as a member of the press. We feel some such set of guidelines can go a long way in preventing the misuse of these laws against journalistic activities.”