Media raids and breaking the silence on press freedom

The events described suggest a potential case of government censorship and intimidation of the media. On January 17, 2023, the BBC released a two-part documentary series titled "India: The Modi Question". The documentary is likely to have been critical of the Indian government, and specifically, Prime Minister Narendra Modi.
Following the release of the documentary, the Indian government, through the Ministry of Electronics and Information Technology, issued an emergency secret order on January 20, 2023, blocking the documentary’s web links. This move can be seen as an attempt to suppress critical reporting by the media, which is an infringement on freedom of expression and the press.
Then, on February 14, 2023, the Income Tax Department carried out a "survey action" on the offices of the BBC in New Delhi and Mumbai. The timing of this survey, coming soon after the release of the critical documentary, suggests that it may have been politically motivated to intimidate the media and suppress critical reporting.
The press release issued by the Central Board of Direct Taxes (CBDT) cited an alleged evasion of taxes on remittances and discrepancies in BBC’s transfer pricing mechanism. However, the media and the Editors Guild have criticized the raids as intimidation and censorship, suggesting that the actions taken against the BBC are a result of the critical documentary series.
Overall, the events described suggest a concerning trend of government censorship and intimidation of the media in India. Freedom of expression and the press are fundamental rights in a democracy, and any attempt to suppress them is a threat to democracy itself. It is crucial for the Indian government to respect these rights and refrain from using tactics of intimidation to suppress critical reporting by the media.

The "survey actions" carried out by the Income Tax Department, which involves visiting the offices of journalists and media organizations, can have a chilling effect on freedom of the press. The act of knocking on the doors of journalists and conducting investigations or seizing devices can be seen as a form of intimidation, intended to instill fear and self-censorship among journalists.
When journalists are subjected to these kinds of actions, it creates an atmosphere of suspicion and mistrust, which can affect their ability to report freely and independently. The fear of being targeted by the government can lead to self-censorship, where journalists avoid reporting on sensitive issues or critical stories, in order to avoid the risk of being targeted by the authorities.
The seizure of devices, as has reportedly happened in the case of the BBC, can be particularly concerning, as it can lead to the exposure of confidential sources and sensitive information. It also sends a message that journalists are being treated as potential criminals, which can have a chilling effect on freedom of the press.
Journalists play a crucial role in any democracy, as they serve as watchdogs, holding those in power accountable and shining a light on issues that may otherwise go unnoticed. Any attempt to intimidate or silence journalists is a threat to democracy itself. It is essential that the government respects the freedom of the press and refrains from using tactics of intimidation to suppress critical reporting. Journalists should be free to do their job without fear of reprisals or persecution.

The extraction of sensitive data from journalists by using tax and police departments across India is a worrying trend that has gained momentum in recent years. Journalists are being targeted under the guise of financial and tax investigations, with their phones and computers being searched, and their working methods being scrutinized.
The case of the CBDT press release mentioned in the question is just one example of this trend. The CBDT, or Central Board of Direct Taxes, is responsible for administering direct tax laws in India. While its investigation may be legitimate, the broad scope of its search, which includes the search of journalists' devices and the collection of their working methods, raises concerns about the government’s intentions.
The fact that journalists are being targeted in this manner suggests that the government is using tax and police departments as a means of intimidating and silencing the press. Journalists play a crucial role in exposing corruption, malfeasance, and abuses of power by those in authority. By targeting journalists, the government is sending a message that it will not tolerate scrutiny or criticism.
This trend is particularly alarming in light of India’s recent decline in press freedom. According to Reporters Without Borders, India ranks 142nd out of 180 countries in its World Press Freedom Index. This decline has been attributed to a number of factors, including the government’s increasing intolerance of dissent and its efforts to suppress critical reporting.
The use of tax and police departments to target journalists is just one aspect of the broader assault on press freedom in India. Other tactics include the use of defamation suits, the arrest of journalists, and the revocation of press credentials. These actions have a chilling effect on the press, making it difficult for journalists to report on sensitive issues and hold those in power accountable.
In conclusion, the extraction of sensitive data from journalists by using tax and police departments across India is a worrying trend that undermines press freedom and the democratic values that India claims to uphold. Journalists must be allowed to do their job without fear of harassment or intimidation, and the government must take steps to protect the rights of journalists and ensure that they are free to report on issues of public interest without fear of reprisal.

The increasing number of reported instances of device searches that impact press freedom in India is a worrying trend that raises serious concerns about the state of free speech in the country. Since 2018, there have been at least 10 reported instances of such searches, with journalists and media organizations being targeted under the guise of financial and tax investigations.
The fact that this list of instances is incomplete is itself alarming, as it suggests that the government is not keeping track of these searches and may be engaging in such actions more frequently than we are aware of. This lack of transparency is a cause for concern, as it makes it difficult to assess the full scope of the problem and hold those responsible accountable.
The fact that these searches are impacting journalists and media organizations across the political spectrum is also significant. It suggests that the government is not just targeting those who are critical of its policies, but is also willing to go after those who are perceived to be sympathetic or neutral. This creates a chilling effect on the press, as it makes it difficult for journalists to report on sensitive issues without fear of reprisal.
The use of device searches to target journalists is particularly concerning, as it can have a profound impact on the ability of journalists to do their job. Journalists rely on their phones and computers to communicate with sources, conduct research, and file stories. By seizing their devices and searching through their data, the government is effectively cutting off their access to information and sources.
Furthermore, the fact that the government is using tax and police departments to carry out these searches raises questions about the legality and legitimacy of the actions. While it is important for the government to investigate financial crimes and tax evasion, it must do so in a way that respects the rights of journalists and media organizations.
In conclusion, the increasing number of reported instances of device searches that impact press freedom in India is a cause for concern. The lack of transparency and accountability surrounding these searches makes it difficult to assess the full scope of the problem, but the fact that journalists and media organizations across the political spectrum are being targeted suggests that this is a systemic issue that needs to be addressed. The government must take steps to protect the rights of journalists and ensure that they are free to do their job without fear of reprisal.

The response of the Ministry of Home Affairs stating that it cannot centrally maintain device seizures of journalists, under the guise of police and law and order being topics within the competence of state governments, is a half-truth. While it is true that the responsibility of law and order lies with state governments, the central government can still maintain records and take action in cases where journalists are being targeted unjustly.
One way in which this can be done is by including data on device seizures of journalists in the Crime in India report, which queries data from state governments. The central government can also maintain records and publish data on device seizures of journalists carried out by central agencies, such as the Income-Tax Department.
The fact that the government is evading responsibility and refusing to maintain records of these searches and seizures only raises suspicions about the legitimacy of prosecutions and suggests a lack of intent on the part of the executive to address this issue. It also highlights a myopic belief that protection of freedom of speech, particularly for critical voices, is limited to the courts.
The protection of freedom of speech is a fundamental democratic duty that extends beyond just the courts. It is the responsibility of the executive, legislature, and judiciary to uphold this right and ensure that journalists and media organizations are able to operate freely and without fear of reprisal.
By refusing to maintain records of device seizures of journalists, the government is shirking its responsibility and failing to take adequate action to protect the freedom of the press. This not only undermines the credibility of the government but also threatens the democratic fabric of the country.
In conclusion, the response of the Ministry of Home Affairs that it cannot centrally maintain records of device seizures of journalists is a half-truth that highlights a lack of intent on the part of the executive to protect the freedom of the press. It is the responsibility of the government to take adequate action and ensure that journalists are able to operate freely without fear of reprisal.

The statement that trial courts are not necessarily a bulwark against threats to constitutional rights is not a popular view, but rather an assessment based on the institutional cultures of these courts. Lawyer Abhinav Sekhri argues that the culture of trial courts in India is rooted in a colonial mentality of maximizing state interests while depriving any semblance of protection to accused persons.
This colonial mentality can be traced back to the British colonial period, during which the courts were primarily concerned with maintaining law and order rather than protecting individual rights. In this system, the role of the courts was to serve the interests of the state, rather than to uphold the rights of the accused.
Despite the end of colonial rule, this institutional culture has persisted in Indian courts. This is reflected in the way in which the courts often prioritize the interests of the state over the rights of the accused. For example, in cases involving national security or terrorism, the courts have been known to err on the side of the state, even if it means infringing upon the rights of the accused.
This institutional culture also affects the way in which trials are conducted in India. The burden of proof is often placed on the accused, rather than on the prosecution, and the presumption of innocence is not always upheld. As a result, many accused persons are not afforded the protections they are entitled to under the Constitution.
Moreover, the slow pace of trials and the backlog of cases in Indian courts often mean that accused persons are left languishing in jail for years, without a fair trial or a chance to prove their innocence. This has serious implications for their human rights and for the integrity of the justice system as a whole.
In conclusion, the institutional cultures of trial courts in India are rooted in a colonial mentality of maximizing state interests at the expense of the rights of the accused. This has serious implications for the protection of constitutional rights and for the integrity of the justice system as a whole. It is important to recognize these issues and work towards reforming the justice system to ensure that it upholds the principles of justice, fairness, and equality.

The paper referred to suggests that the powers given to police officers to unlock smartphones in India are indicative of a larger issue in the country’s criminal justice system. The Code of Criminal Procedure, 1973 (CrPC) is the procedural law governing criminal cases in India. However, the paper argues that specific legal provisions within the CrPC provide police officers with unfettered discretion, and this discretion is compounded by a carceral spirit that has been deeply ingrained in India’s criminal justice system for decades.
This carceral spirit refers to a culture within the criminal justice system that prioritizes punishment over rehabilitation and focuses on detaining individuals rather than addressing the root causes of crime. This culture is reflected in the way in which the criminal courts in India operate. Rather than checking the police for their investigatory practices and evidence collection, criminal courts have traditionally deferred to the police’s actions and decisions.
This has resulted in a situation where police officers have been given broad powers to unlock smartphones without adequate oversight or checks and balances. These powers are often used arbitrarily, without any regard for individual rights or privacy concerns. The paper argues that this is indicative of a larger problem within the criminal justice system in India, where the police are given too much power and are not held accountable for their actions.
The paper suggests that there needs to be a fundamental shift in the way in which the criminal justice system operates in India. This includes rethinking the role of the police and prioritizing the protection of individual rights over the interests of the state. Additionally, the paper suggests that criminal courts need to be more proactive in checking police actions and ensuring that evidence is collected and used in a fair and just manner.
In conclusion, the powers given to police officers to unlock smartphones in India are indicative of a larger issue within the country’s criminal justice system. This system is characterized by a carceral spirit that prioritizes punishment over rehabilitation and a lack of oversight or checks and balances on police actions. To address these issues, there needs to be a fundamental shift in the way in which the criminal justice system operates in India, including prioritizing the protection of individual rights and ensuring that police actions are checked and balanced by criminal courts.

The CBDT (Central Board of Direct Taxes) is the governing body responsible for overseeing the administration of direct taxes in India. The Income Tax Act of 1961 provides a legal framework for the assessment and collection of income tax, and it sets out the powers and limitations of investigating officers who are authorized to conduct surveys and searches.
However, in recent years, tax experts such as Deepak Joshi have raised concerns about the questionable legality of the CBDT’s "survey action" and the potential for abuse by investigating officers. According to Joshi, the lack of fear of sanction or checks on the powers of investigating officers in a survey action can lead to more invasive search and seizure operations that disregard the limitations and spirit of the text in the Income Tax Act.
The Income Tax Act provides for two types of actions by investigating officers: surveys and searches. Surveys are typically conducted at a business premises to gather information about the books of accounts, stock, and other relevant documents. On the other hand, searches are more invasive and involve the seizure of documents and assets. A search can only be conducted if the officer has "reason to believe" that the taxpayer has undisclosed income or assets.
The problem with survey actions is that investigating officers are given broad powers to enter and inspect premises, without the need for any prior authorization or judicial oversight. This lack of oversight can lead to abuse of power and violations of taxpayer rights. Investigating officers may exceed their powers during the survey, conduct searches, or seize documents without any legitimate reason.
The political interests of the government can also exacerbate the problem. For instance, if a particular business is seen as unfavorable to the ruling party, the investigating officer may be inclined to conduct a more invasive survey, which may eventually turn into a search and seizure operation. The lack of checks and balances means that there is no way to prevent such abuses of power.
In conclusion, the questionable legality of the CBDT’s survey actions and the potential for abuse by investigating officers are major concerns. Without proper oversight and checks on their powers, investigating officers may exceed their limits and violate taxpayer rights. It is essential to ensure that the powers granted to investigating officers are used judiciously and in compliance with the law. The government must also take steps to ensure that there are checks and balances in place to prevent abuses of power.

In the absence of effective checks and balances, constitutional courts play a crucial role in safeguarding fundamental rights and liberties. They interpret and apply the constitution, review the actions of the legislative and executive branches, and strike down laws and policies that violate constitutional rights. This is particularly important in cases where there is a risk of abuse of power, such as in criminal justice systems where electronic evidence is involved.
The K.S. Puttaswamy vs Union of India case was a landmark judgment by the Indian Supreme Court that recognized the right to privacy as a fundamental right under the Indian Constitution. The court held that privacy is a necessary condition for the enjoyment of other rights and that any intrusion on privacy must meet certain standards of legality, legitimacy, and proportionality. This judgment has important implications for the use of electronic evidence in criminal trials, as it emphasizes the need for strict safeguards to protect the privacy rights of individuals.
The D.K. Basu guidelines were first introduced by the Indian Supreme Court in 1997 in response to reports of custodial torture and deaths. These guidelines set out the minimum standards for the arrest, detention, and interrogation of individuals by law enforcement agencies. In a digital India, these guidelines could be adapted and updated to ensure that procedural safeguards are in place to protect the rights of individuals in the use of electronic evidence.
The Supreme Court of the United States, in the case of Riley vs State of California, recognized that cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The court held that the Fourth Amendment’s prohibition on unreasonable searches and seizures requires that law enforcement officers obtain a warrant before searching the contents of a cell phone seized incident to arrest, even if the phone is password-protected. This decision underscores the need for strict procedural safeguards to protect the privacy rights of individuals in the digital age.
In conclusion, the role of constitutional courts is critical in protecting fundamental rights and liberties, particularly in cases where electronic evidence is involved. The application of the right to privacy, the adaptation of the D.K. Basu guidelines, and the implementation of stricter procedural safeguards are all important steps that can be taken to protect the rights of individuals in a digital India.

You are correct that guidelines alone may not be sufficient to address the issue of abuse of power in the seizure of electronic devices belonging to journalists. Case-specific pronouncements on the facts are necessary to ensure that legal processes are not misused to target journalists or stifle press freedom.
The recent trend of seizing electronic devices of journalists is a form of harassment and intimidation that is designed to sidestep direct responses to critical articles. It is often done in bad faith and is a clear violation of press freedom. The Indian Supreme Court has recognized this pattern of government action in several press freedom cases and has developed legal doctrines to address it.
One such doctrine is the "direct and inevitable" test, which was first established in the landmark case of Romesh Thapar vs State of Madras (1950). The court held that the government cannot curtail the freedom of the press unless there is a direct and inevitable connection between the speech or publication and a threat to public order. This test was later expanded in later cases to include the "effect and consequence" test. This test allows for a broader consideration of the impact of government action on press freedom, even if the direct and inevitable connection is not established.
In Indian Express Newspapers (Bombay) Private Ltd. vs. Union of India (1985), the Supreme Court held that the "direct and inevitable" test must be read in conjunction with the "effect and consequence" test. The court emphasized that the "effect and consequence" of government action on press freedom must also be considered, even if the direct and inevitable connection is not established. This test acknowledges the indirect and subtle ways in which government action can infringe on press freedom.
In Indian Express Newspapers (Bombay) Private Ltd. and Another v. Union of India and Others (1986), the Supreme Court further clarified the "effect and consequence" test. The court held that the test must be applied to the "totality of circumstances" and not just the direct impact of government action on press freedom. This ensures that the courts consider the full context in which the government action is taken and the potential impact on press freedom.
In conclusion, the Indian Supreme Court has recognized the pattern of abuse of power in the seizure of electronic devices belonging to journalists and has developed legal doctrines to address it. The "direct and inevitable" test, along with the "effect and consequence" test, are important legal doctrines that protect press freedom. By considering the full context in which government action is taken and the potential impact on press freedom, the courts can ensure that the right to free speech and press freedom are protected.

Jurist Rajeev Dhawan’s observation in 1986 about the partial attention paid to the operational and institutional needs of the press is still relevant today. Press freedom has been under threat for decades, and there has been a long and tragic silence on the issue.
One reason for this silence is the lack of political will to protect press freedom. Governments, both past and present, have often viewed the press as a threat and have used various tactics to control it. These tactics range from subtle pressure to overt censorship and harassment. In some cases, governments have even resorted to physical violence to silence journalists.
Another reason for the silence on press freedom is the lack of public awareness and support for this fundamental right. Many people do not fully understand the importance of a free press in a democracy and the role it plays in holding those in power accountable. Without public pressure and support, governments are less likely to take action to protect press freedom.
Furthermore, there has been a lack of institutional support for press freedom. The judiciary has not always been proactive in protecting press freedom, and in some cases, has even sided with the government against journalists. The media industry itself has also been criticized for not doing enough to protect its own interests and for being too dependent on government support.
The lack of institutional support for press freedom has also led to a lack of accountability for those who violate this fundamental right. Journalists who are targeted for their reporting often face legal challenges and harassment, and those responsible for such actions are rarely held accountable.
In recent years, there have been some positive developments in the fight for press freedom. The rise of social media and citizen journalism has made it harder for governments to control the flow of information. International organizations like Reporters Without Borders and the Committee to Protect Journalists have also raised awareness about the importance of press freedom and provided support to journalists who are targeted for their reporting.
In conclusion, the long and tragic silence on press freedom has been a result of various factors, including a lack of political will, public awareness, and institutional support. However, there have been some positive developments in recent years, and it is important to continue to raise awareness about the importance of a free press and to hold those who violate press freedom accountable.

The doctrine of "effect and consequence" is an important principle that should be revived and applied by the Supreme Court to consider a broader range of executive actions that affect press freedom. This principle recognizes that government actions can have a chilling effect on press freedom, even if they are not directly aimed at suppressing it. In other words, the impact of government actions on press freedom must be taken into account, along with their stated purpose.
In the context of the BBC case, the doctrine of "effect and consequence" means that the court should not only consider the specific allegations of tax evasion but also the broader context of the investigation. If the investigation was prompted by the documentary critical of the Prime Minister, then the court should consider whether the investigation is an attempt to silence dissent and suppress press freedom. This broader context is important because it helps to identify the true motive behind the government’s actions and to prevent abuse of power.
In order for the press to remain free and fair, it is not enough for journalists alone to act without fear or favor. The courts also play a crucial role in protecting press freedom by upholding the rule of law and preventing government abuse of power. Courts must be independent and impartial, and they must be willing to scrutinize government actions, even if they are unpopular or politically sensitive.
Courts must also be willing to interpret the law in a manner that protects press freedom. This may require a creative and dynamic approach that takes into account the changing nature of the media and the challenges that journalists face in the digital age. For example, courts may need to consider new forms of evidence, such as electronic data, and develop new legal doctrines to protect press freedom in the face of emerging threats.
In conclusion, the doctrine of "effect and consequence" is an important principle that should be applied by the Supreme Court to protect press freedom. The courts play a crucial role in upholding the rule of law and preventing government abuse of power, and they must be willing to interpret the law in a manner that protects press freedom in the digital age. To ensure a free and fair press, both journalists and courts must act without fear or favor.

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