Underlining press freedom, SC draws on US case laws, explains ‘chilling effect’

Ananthakrishnan G
supreme court kashmir restrictions, jammu kashmir internet shutdown, kashmir papers restriction, kashmir lockdown, press freedom

At a protest against the Rajiv Gandhi government’s Defamation Bill in 1988, (from left), editor and leader of the BJP, K R Malkani; editor and activist Kuldip Nayar; editor-author Khushwant Singh; commentator and editor of The Statesman, C R Irani; and founder of The Indian Express Group, Ramnath Goenka. (Express Archive)

“Responsible governments are required to respect the freedom of the press at all times”, “journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely”, the Supreme Court said Friday, ruling on petitions challenging the curbs imposed in J&K following the abrogation of Article 370 on August 5 last year.

One of the petitions was filed by Anuradha Bhasin, Executive Editor of Kashmir Times, who contended that the cumulative effect of the restrictions, such as imposition of Section 144 and restrictions on Internet and communication, has had a chilling effect on free speech and the freedom of press in the Valley.

Discussing case laws from the United States on the evolution of the concept of chilling effect, a bench of Justices N V Ramana, R Subhash Reddy and B R Gavai rejected her argument.

“One possible test of chilling effect is comparative harm,” the court said, adding, “in this frame­work, the court is required to see whether the impugned restrictions, due to their broad­based nature, have had a restrictive effect on similarly placed individuals during the
period”.

Bhasin, the court said, had contended that she was not able to publish her newspaper from August 6-October 11, 2019. “However, no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area,” it said, adding that “without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose”.

The court said Solicitor General Tushar Mehta, appearing for the J&K administration, had submitted that there were newspapers which were operational during this time.

“There is no doubt that the importance of the press is well established under Indian law. The freedom of the press is a requirement in any democratic society for its effective functioning,” the court said. “There is no doubt that the freedom of the press is a valuable and sacred right enshrined under Article 19(1)(a) of the Constitution. This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society,” it said.

Discussing “chilling effect”, the court ruled that it has been utilised in Indian jurisprudence as a fairly recent concept. In the US, its presence can be traced to the 1952 decision in Weiman v. Updegraff. The case pertained to the dismissal of employees of the Oklahoma Agricultural and Mechanical College as they had refused to take the loyalty oath, which required them to swear that they were not members of certain groups. This was struck down by the US Supreme Court as unconstitutional.

Delving into the US case law, Justice Ramana, who authored Friday’s judgment, said: “We may note that the argument of chilling effect has been utilised in various contexts, from being purely an emotive argument to a substantive component under the free speech adjudication. The usage of the aforesaid principle is chiefly adopted for impugning an action of the State, which may be constitutional, but which imposes a great burden on free speech. We may note that the argument of chilling effect, if not tempered judicially, would result in a ‘self-proclaiming instrument’.”

“The principle of chilling effect was utilised initially in a limited context, that a person could be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute,” the court said.

The judgment said the widening of the ‘chilling effect doctrine’ has always been viewed with judicial scepticism, and referred to the 1972 decision of the US Supreme Court in Laird v. Tantum, wherein the respondent brought an action against the authorities to injunct them from conducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine.

The US Supreme Court, in its majority decision, dismissed the plea of the respondent on the ground of lack of evidence to establish such a claim, observing that “allegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”