The Kashmir Walla 'Nightmare' Unfolds Despite SC's Avowal of Press Freedom

Such fissures between what's said and what materialises also create a chilling effect on other journalists.

Fahad Shah, editor of The Kashmir Walla.

(Photo: Chetan Bhakuni/The Quint)

A broken white banner, a leaflet and a dusty brown carton lie on the floor, amid other old things. The photos doing the rounds of the internet since the alleged blocking of the website of The Kashmir Walla (a Kashmiri news outlet), stand testament to the feelings of its reporters.

The rooms look desolate despite all the objects lying around, the walls appear bare despite all the old yellow news clippings papered on to them. It looks as if someone or something important has left the room. It has, and its name is press freedom.

“An independent press is vital for the robust functioning of a democratic republic,” the Supreme Court had said in April this year, as it set aside a telecast ban imposed by the Union Government on Malayalam news channel MediaOne.

Less than five months later, a statement circulated by The Kashmir Walla staff read:

“For the past 18 months, however, we’ve lived a horrifying nightmare...On Saturday, August 19, 2023, we woke up to another deadly blow of finding access to our website and social media accounts blocked.

When we contacted our server provider on Saturday morning to ask why thekashmirwalla.com was inaccessible, they informed us that our website has been blocked in India by the Ministry of Electronics and Information Technology under the IT Act, 2000.”

The statement further says that they also discovered that their Facebook page – with nearly half a million followers – had been removed. “As had our Twitter account, “in response to a legal demand.””

And then, finally, they were served an eviction notice by the landlord of their office in Srinagar.

Blocked, Erased and Uprooted?

Thus, in one fell swoop, The Kashmir Walla appears to have been blocked, erased from social media and uprooted from its office. But this is hardly its first blow.

In January 2022, Sajad Gul, who had worked briefly with TKW as a trainee reporter, was arrested and detained under the PSA. Nineteen months later, he remains behind bars.

In February 2022, the organisation’s editor Fahad Shah had told his parents that he might have to spend a night at the Pulwama Police station where he had been summoned for questioning in connection with one of his news-reports. However, it has been over eighteen months since and Shah is yet to return home.

“Fahad Shah, our founder-editor, was arrested in February 2022 over the coverage of a gunfight. It was the beginning of the saga of his revolving door arrests. He went on to be arrested five times within four months. Three FIRs under the stringent Unlawful Activities (Prevention) Act and one Public Safety Act have been registered against him,” TKW said, in its statement.

Over a year after Shah's PSA detention, the Jammu and Kashmir High Court quashed the proceedings and noted that “the case at hand is a clear example of non-application of mind.” However, Shah continues to be in jail because of the UAPA charges against him.

But What is This Latest ‘Blocking’ of TKW All About?

As per the statement, the TKW staff is not aware of the specifics of why their website has been blocked in India or why their social media accounts have been removed/withheld.

“We have not been served any notice nor is there any official order regarding these actions that is in the public domain so far,” the statement further said.

Generally, such blocking of online content is carried out under Section 69A of the IT Act. This section allows the central government the power to issue directions for blocking of any information through any computer resource.

Such orders can be passed by the Central Government or any authorised officer, if they are satisfied that “it is necessary or expedient” to do so. And it has to be “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.”

What Does This Mean?

This means that a reason such as “national security” is enough to enable the curtailment of an entire news organisation. And while we do not know of the government's exact reason in TKW’s case yet, such reasons have been employed liberally in pursuit of many similar ends.

In MediaOne’s case, it wasn’t a blocking order under the IT Act, but the Central Government’s refusal to grant security clearance to the channel. But for this too the government had cited ‘unimaginable consequences on national security’ as the reason.

In defence of its decision, the State had also submitted some reports in a sealed cover to the courts.

But, the Supreme Court was having none of it. Setting aside the telecast ban on the news channel, the apex court noted that “national security is being used to deny citizens their rights, which cannot be permitted under law.”

Additionally, the court expressed disapproval of the 'sealed-cover', noting that it “…perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge."

The Supreme Court also emphasised significantly on the importance of press freedom, stating that “the restriction on the freedom of the press compels citizens to think along the same tangent.” In simple words: the death of press freedom would enable the death of independent thought.

And Why Does This All Matter?

Two things become clear from a perusal of the apex court’s MediaOne judgment:

A) The principle of natural justice need not not necessarily pale before serious “national security”-like claims

One of the main criticisms of Section 69A of the IT Act is that it robs the citizen (whose content is being blocked/censored) of their right to be heard before such orders are passed. Audi Alteram Partem or “hear the other side” is a key principle of natural justice. But under 69A, the Centre is empowered to pass orders — citing sovereignty of India, national security etc — without having to hear the other side.

In MediaOne, however, the bench noted that “the mere involvement of issues concerning national security would not preclude the state’s duty to act fairly.”

B) Press freedom is of paramount consequence in a democracy.

This, however, is not some new, fancy idea introduced by the MediaOne judgment. The judgment merely reiterates it. It finds its roots in the fundamental rights enshrined in part III of the Constitution of India and it has been repeatedly upholstered by the wisdom of our constitutional courts.

In an order granted bail to TV News personality Arnab Goswami, Justice DY Chandrachud (present Chief Justice of India) had said: “India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal.”

Refusing to ban fact-checker Mohammed Zubair from tweeting, the same judge had noted that such a curtailment would be akin to asking a lawyer to not argue.

The apex court has in the past also held that even if there are some instances of “wrong reporting”, journalists should be allowed freedom of expression.

So Why This Unrelenting ‘Nightmare’ for TKW and Its Journalists?

Unfortunately, to this there is no safe answer.

If there was ever a wedge between the constitutional values avowed by the topmost court of the country and the treatment of those same values by other stakeholders, it would have never been greater than today.

Such fissures between what is said and what materialises also create a chilling effect on other media organisations and journalists. No-one wants to wake up one morning to find their website blocked or their editor in jail. No-one wants to work with the fear of such a fate hanging over their heads. How will you write your story if your pen becomes a ticking bomb?

In the words of The Kashmir Walla staff:

“This opaque censorship is gut-wrenching. There isn’t a lot left for us to say anymore.”

(Mekhala Saran is The Quint's former Principal Correspondent - Legal.)