Silence is not a virtue

It was heartening to read all the glowing tributes to veteran journalist Kuldip Nayar and his relentless fight for a free press. The irony is that some of those who do not value the importance of a free press are celebrating his resistance to the Emergency. In the mid-1970s, the threat to media freedom was transparent as it was a top-down command. Now, it has taken myriad forms and operates in a subtle fashion. It is akin to a byzantine maze. No prior restraint One of the key tools used to silence a probing press, whose fundamental mandate is to scrutinise those in power, is the prepublication gag order. In recent times, gag orders have been coming as an avalanche. They are in gross violation of the Supreme Court’s 1994 order in R. Rajagopal v. State of Tamil Nadu . The Bench comprising Justices B.P. Jeevan Reddy and S.C. Sen categorically denied the option of prior restraint. The apex court observed that it was important to strike a balance between the freedom of the press and the right to privacy. The court said that the state and its officials do not have the right to impose prior restraints on the publication of materials that may be defamatory to the state. “No such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication,” the court said, but this does not prevent the state from initiating legal proceedings if it finds the published material to be defamatory. In other words, the ruling meant that no one can prevent the publication of potentially defamatory articles; one can only sue after such articles are published. But what constitutes defamation? Why should India permit both criminal and civil defamation? Legal experts have explored these contentious issues at length. There seems to be a wide gap in the interpretation and application of laws between the higher judiciary and the lower judiciary in India. While the higher judiciary retains the space for freedom of expression, the lower judiciary tends to restrict it on untested legal grounds, often bordering on infringement of fundamental rights. For instance, in Karnataka, nearly 80 cases of blanket prior injunctions were issued against various media houses, including this newspaper. It takes months, if not years, to get these injunctions vacated. It is not just governments that opt for prior restraint to silence the media and hamper the flow of information but also powerful corporate houses.

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