Maharashtra’s new law has significant omissions

BY GEETA SESHU| IN Law and Policy | 11/04/2017
Does the new law water down what the IPC provides in terms of adequate punishment for grievious assault? Also, freelancers and stringers are not covered,
says GEETA SESHU

The Maharashtra Legislative Assembly

 

Will the first ever journalist protection law, passed by both houses of the Maharashtra legislature on April 7, 2017, end up being a hollow victory for journalists?

The law, entitled the ‘Maharashtra Media Persons and Media Institutions (Prevention of violence and damage or loss to Property) Act, 2017', appears, on the face of it, to address the increasing attacks on journalists, the damage to equipment of photographers and of television channels and the vandalisation of property of media houses.

The act’s statement of objects and reasons says the government of Maharashtra decided to enact a special law ‘on account of the rampant instances of violence and attacks against media persons and damage or loss to the property of Media Institutions’. There is a strong demand to prevent such violence, check its recurrence and effectively curb the occurrences of such incidents, the statement says.

So far, so good. But what are the mechanisms to actually prevent violence and safeguard media persons, media institutions and their property? How does the act define media persons and media institutions? More to the point, how does the act define when violence occurs during the discharge of the media person’s ‘duty’ and what punishments and deterrent mechanisms does the act put into place? What is the constitutional validity of such an act, as it accords a special status to media persons and media institutions?

"What is the constitutional validity of such an act, as it accords a special status to media persons and media institutions?"

Each of these aspects needs much more debate and discussion to actually make a law like this work. Otherwise, it will end up being a mere sop for journalists who really do need protection.

There is no doubt that journalists have been increasingly under attack. More than 28 journalists have been killed over the last ten years. The figure could have been worse as the rising number of attacks on journalists have become more brutal and vicious – journalists have faced acid attacks, survived shootings and even immolation attempts. Its been easier for criminal elements, mafias controlling mining or illegal trades or local politicians to target individual journalists, often operating as stringers in rural areas or even as part of the new breed of ‘social media’ journalists.

 

Campaigns for an act

For several years, the Patrakar Halla Virodhi Sanghatna, comprising mostly rural journalists in Maharashtra, have been campaigning for an act to protect them from attack. They submitted a memorandum before the Press Council of India and even got a draft ordinance from the then Congress-NCP government in 2011 but a cabinet sub-committee headed by then Industries minister Narayan Rane rejected the demand for a special status for journalists.

Separately, journalists from Chhattisgarh who have been facing attack from police and security forces in the state, have also campaigned for a law. Last year, the journalists worked with the Chhattisgarh People’s Union for Civil Liberties (PUCL) to draft the Chhattisgarh Special Act for Protection of Journalists and Human Rights Defenders but the campaign didn’t make much headway with the government.

 

Provisions of the Maharashtra act

Definition of mediaperson and media institutions: The act defines media institutions as registered newspaper establishments, news channel establishments, news-based electronic media establishments or news station establishments. A media person is one whose principal avocation is that of a journalist and is employed either on regular or contract basis in one or more media institutions and includes editor, sub-editor, news editor, reporter, correspondent, cartoonist, news-photographer, television cameraman, leader-writer, feature writer, copy tester and proof-reader.

While the act does not specifically list out news websites under media institutions, it does include ‘online periodical work containing public news or comments on public news’ as newspapers.  Similarly, it defines news based electronic media as any media that uses electronic devices for end users to access content.

It fails to specifically include the most vulnerable section of journalists, namely freelancers or stringers in its definition of media persons. It also omits journalists who use social media networks or even bloggers. All of these categories are vulnerable, and efforts will have to be made to cover these categories  when the rules for this law are written.  The definition of media persons cited above will have to be expanded. Journalists will have to take this up with the Maharashtra Government.

 

Salient sections :

Sec 3 of the act expressly prohibits any ‘act of violence against a media person or damage or loss to the property of media person or media institution’.  Any offender (Sec 4) who commits or attempts to commit or abets or instigates or provokes the commission of any act of violence in contravention of provisions of Sec 3, shall be punished with imprisonment of upto three years and/or a fine of upto Rs 50,000. Any offence would be investigated by an officer of the rank of  Deputy Superintendent of Police (Sec 5). Any offence is cognizable and non-bailable (Sec 6).

Offenders are liable to pay compensation for damage or loss of property (Sec 7) and false complaints by media persons can result in punishment of upto three years with a fine of upto Rs 50,000 and loss of government benefits and accreditation cards (Sec 8).

 

What’s missing from the law

The Hoot spoke to well-known Mumbai-based criminal and human rights lawyer Vijay Hiremath to find out. He said that the biggest flaw in the law is that it can actually water down the punishment for a serious case of assault. Ordinarily, the police can apply charges under the Indian Penal Code (IPC) of Sec 326 for grievous assault and even Sec 307 of attempted murder, both of which can attract punishment of life imprisonment. Even if police do apply IPC provisions with this law, sentences run concurrently so the benefit of a separate law is unclear.

"The biggest flaw in the law is that it can actually water down the punishment for a serious case of assault."

While Adv Hiremath agreed that the IPC provisions for damage to property were negligible and this law would score over the IPC, it was not clear why a campaign to enhance provisions of the IPC for damage to property was not undertaken.

According to him, the reason why implementation of any law failed was two-fold:  One, the will of the police to investigate a complaint speedily, without pressure and its commitment to apply the more stringent provisions when it was called for instead of a tamer or weaker section of the law, with lesser punishments.

Two, the over-burdened judicial system where cases languish either because judges are over-burdened or an adequate number of judges haven’t been appointed to hear cases.

Journalists could have pushed for early hearing or fast tracking of their cases but can journalists seek a special privilege over other citizens? Would that be constitutional, he asked.

 

Are journalists a separate class?

Indeed, the crux of the issue is whether journalists can claim special privileges and protections. Under Art 19 of the Constitution, all citizens (including media persons and media institutions) have the same rights (and reasonable restrictions) to freedom of speech and expression.  Can we then seek special protections?

In several instances, journalists’ bodies have argued that they do deserve special privileges, especially for sops and doles like housing, pension schemes or insurance. In the last few years, there is a rash of state government schemes announced for just such schemes (four days ago, the Devendra Phadnavis government has announced that the Maharashtra government will be coming out with a scheme for journalists).

Interestingly, the Press Council of India came out strongly against what it listed out as ‘undue favours’, after a study on the subject it conducted between 1985-95 and said: The Committee was of the opinion that since the Fourth Estate was not a part of the government, this benefit constituted a favour if the pensionary benefits were extended by the government. The role of the authorities should be limited to ensuring that the newspaper establishments implement the awards of the Wage Boards (See here and here).

 

Are laws a solution?

The demand of journalists’ organisations for a law to combat physical attacks, draws much from the law doctors have to protect themselves from patients’ ire. The latter have been given protection as designated public servants performing a public duty, which, arguably, journalists in private employment may be hard put to claim for themselves. In any case, as the recent doctors’ strike in Mumbai showed, the law has hardly been a deterrent for such attacks. What then, is the best way for journalists to protect themselves when they are attacked on duty in the performance of work that is in the public interest?

Today, impunity still dogs each instance of death or attack and police investigations often start on the premise that the attacked journalist was either not a legitimate journalist or was not attacked for his/her journalism. A law which ensures that far better mechanisms to investigate crimes against journalists like the senior police officer to investigate the attack without fear or favour, may be a huge step forward. That is still the first and most important step.

For journalists’ organisations, there’s no substitute for continued and systematic monitoring of each instance of attack, dogged follow-ups and the old-fashioned solidarity on the ground. 

 

 

 

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