Laws that render media defenseless in Kashmir:Part I

BY SHUJAAT BUKHARI| IN Media Freedom | 02/08/2012
Security-related laws like the Public Safety Act actually work against the media,
says this two-part analysis by SHUJAAT BUKHARI

For mediapersons in Kashmir, 2010 was a year of ‘press emergency’, with an already beleaguered and vulnerable media coming under intense pressure and being subject to increasing assault and restrictions. Apart from the five-month ban on publications, dozens of photojournalists and reporters, representing different media organizations, were severely beaten up by Para military forces while they were covering the ‘stone-pelting’ agitation in summer.

The repression was not just an aberration but illustrative of the existing restrictive framework of the security-related laws that mediapersons in Kashmir routinely worked under. One such law is the Public Safety Act, 1978. This study examines how this legislation has been systematically used against journalists in Kashmir.

The Jammu and Kashmir Public Safety Act (1978), one of the most draconian laws applicable in the state of Jammu and Kashmir, is rampantly used as a repressive measure to scuttle any dissent. It finds its roots in The Defence of India Act (DIA), in force in British-ruled India. But PSA happens to be a more punitive form of DIA.

The Act was passed by the Jammu and Kashmir State Assembly in 1978 and was later amended in 1990. The law was introduced by then Chief Minister Sheikh Mohammad Abdullah to punish his political rivals who opposed his accord with then Indian Prime Minister Indira Gandhi in 1975. Ironically however, but it has been used by the successive regimes in the state since 1989 when the armed rebellion broke out against Indian rule in J&K.

Over the last 19 years, the government passed a number of laws to contain political unrest in the Valley. While these laws have been implemented to contain militancy and restrict political activists from pursuing the struggle for "right to self determination", they also targeted the media.

Right from 1990, the media has faced the brunt of government's repressive measures during which the offices and printing presses were sealed umpteenth times and journalists were harassed, intimidated and arrested several times. India, as the world’s largest democracy, professes to have a free press and the Constitutional guarantee under Art. 19 for freedom of expression (along with the reasonable restrictions), ensures freedom of the press too.

But the freedom of the press is infringed upon especially in the cases of political victimization and to marginalize the voices of the people by a regime that does not respect the Constitution and the provisions laid by it for citizens. While the press is fairly free in most parts of India, in the areas that are riddled with conflict, it has been the worst victim of the laws that are otherwise meant to deal with the political dissent.

Apart from political activists and other civilians, the media has also become a victim of the PSA.

Under this Act, detention is possible on ambiguous grounds such as acting in any manner prejudicial to the security of the state and maintenance of public order. The Act limits the powers of the court to review detention orders and gives legal immunity to any government officer acting in good faith in pursuance of the Act. This Act allows detention without trial for years.

The procedure for detaining a person under PSA involves the Magistrate (the District Magistrate) to authorize the arrest. The powers of the magistrate are discretionary and he/she can refuse to grant the permission. The police provide the magistrate with a dossier and based on grounds in that file against the accused, the District Magistrate signs the warrant that permits detention up to two years. This may include recovery of arms/weapons based on information provided by the detainee or other similar grounds.

PSA is not the only law in Jammu and Kashmir that restricts the media from its functioning but there are many others as well. Here’s a brief description of those laws is as under:

* Section 35 of J&K Customs Act 1901 empowers the government to ban circulation of newspapers and other journals and books without assigning any reason.

* Jammu & Kashmir State Newspapers (incitement and offences) Act 1919, empowers the government to seize printing presses and publications on grounds of incitement to murder or to any offence under Explosive Substances Act. Section 6 of this Act stipulates that no order can be called in question in any court.

These two laws enacted almost a century ago have provided unlimited powers to the State to crush and stop newspapers without assigning any reason. They have been the most misused laws in the history of Jammu & Kashmir.

* Rule 34 of the Jammu and Kashmir Public Security Rules 1946 binds the reporter to disclose the source of information. Its violation demands three year's imprisonment with fine.

* Rule 35 of the same law provides five years' imprisonment for contravention of order to public newspapers after pre-censorship.

* Rule 36 provides three years imprisonment for contravening an order prohibiting performance of any drama containing any prejudicial report.

* Rule 65 (b) prescribed three years imprisonment for contravention of an order requiring shopkeepers to keep open their shops and not to observe hartal (Strike).

* Section 10 of the Press and Publications Act 1932 empowers the government to seize printing pressed used for printing newspapers containing "any words, signs or visible representation" which (a) incites commission of any cognizable offence, (b) directly or indirectly expresses, approves, or admires any such offence and (c) to bring into hatred or contempt the government established by law or to excite disaffection towards the government or make malicious attacks on the government or any of its ministers or misinterprets the policies and activities of the government.

* Section 153 (a) of Ranbir Penal Code (RPC) prescribes seven years imprisonment for promoting hatred between different sections of the people on grounds of religion, place of birth etc. besides doing acts prejudicial to maintenance of harmony.

* Section 190 (a), 296 (a) and 505 of the RPC deals with statements conducive to cause fear or public alarm and prescribes three years' imprisonment for writings aimed at fomenting communalism.

(Shujaat Bukhari is the Editor, Rising Kashmir. He is based in Srinagar. This article is part of the assignments related to his research project).

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