Protecting Journalism from National Security in Contemporary India

Freedom of the press is an important element of a robust democracy. In India, press freedom lacks statutory protection, leaving constitutional protection under Article 19(1)(a) as the only remedy. In recent years, the use of anti-terror laws against journalists investigating alleged lapses or excesses by the state has posed a particular threat to press freedom, given the largely minimalist and statist interpretation that the Supreme Court of India has given to these laws. This has been compounded by the election and re-election of an autocratic populist government to Parliament, which has sought to use law as a means of ensuring executive dominance. In this context, I argue that the Court must scrutinise the invocation of national security against the media in the context of its impact on press freedom. To do so would require no major doctrinal shift: the Court's existing free speech jurisprudence, especially from some of its earliest cases, can be used to narrowly tailor the ‘security of the state’ exception in Article 19(2) to ensure robust protection for journalists. I examine two recent judgments of the Court (Anuradha Bhasin and Madhyamam Broadcasting) that have attempted to push the envelope on national security, and suggest that the invocation of the proportionality standard in these cases, instead of the regular minimalist/deferential review, might represent a cautious first step in this direction.