At the BBC office in Mumbai | photo credit: AFP
On February 14, 2023, the Income Tax Department did ‘survey’ action At the British Broadcasting Corporation (BBC) offices in New Delhi and Mumbai. After continuing this survey for three days, a press release was issued by the Central Board of Direct Taxes (CBDT). citing alleged evasion of taxes On remittances and anomalies in the BBC’s transfer pricing mechanism. Several media organizations such as the Press Club of India described the raid as “deeply unfortunate”; The Editors Guild labeled him an “intimidation”. Even those who might support a tax survey will concede that tax scrutiny is a natural consequence. BBC’s two-part documentary series, “India: The Modi Question”Which was released by BBC on January 17, 2023. In an emergency secret order issued by the Ministry of Electronics and Information Technology, The web links of the documentary were blocked On January 20, 2023. The timing and nature of the events point to some rot in the Danish state.
soft message
At the root of these “survey actions” is an attempt to instill fear and self-censorship that begins with knocking on the doors of journalists’ offices. Today, these actions have become increasingly sinister as they now include confiscation of equipment. So, an unpleasant surprise turns into severe shock when journalists are treated as potential perpetrators in the BBC case.
The CBDT press release gives us a clue when it says that “vital evidence through statements of employees, digital evidence and documents” was collected. There are further indications such as one provided by the BBC which states that on February 19, 2023 “journalists’ computers were searched, their phones intercepted and they were asked for information about their working methods “. Even if the CBDT’s case is held to be valid, it will be limited to an accounting and financial probe. Casting a digital net on working journalists without any clear and compelling reasons, it can be defined as a fishing operation. It becomes important here to consider the widespread trend of extracting sensitive data from journalists using tax and police departments across India.
Since 2018, there have been at least 10 cases of device searches affecting press freedom. beginning with quintThey’ve grown to include the publications’ owners and senior editors. Alt Newsindia news, Daily newspaper, newsclick, WireThe Independent and Public-Spirited Media Foundation (IPMSF) and journalists like Fahad ShahRupesh Kumar Singh and Siddiqui Kappan, This anecdotal list presents an incomplete data set as the central government has staunchly defended its inability to keep count.
half truth in executive response
In a parliamentary response on August 10, 2022, the Ministry of Home Affairs stated that since “police” and “law and order” are subjects within the competence of state governments, it would “centrally make” the journalists’ equipment seizures. Can’t keep This is a half truth for two reasons. The first is that the report on crime in India calls into question data from state governments and could easily be extended to include data on equipment seizures of journalists. Second, many searches and seizures are carried out by central agencies such as the Income Tax Department and such records may be maintained and published by the Ministry of Finance. Such institutional evasion only raises doubts about the bona fides of the prosecution and represents a lack of intent for any consideration by the executive, especially the central government. It also reveals a short-sighted, yet widely held belief that freedom of speech, especially the protection of its most important voices, is a democratic duty confined to the courts.
Here, the popular idea of trial courts as a defense against threats to our constitutional rights is rhetoric for legal academics and trial court practitioners to honestly assess their role. Their underlying institutional cultures are “rooted in a blatant colonial mindset of maximizing the interests of the state while denying the accused persons any semblance of protection”, according to lawyer Abhinav Sekhri.
This analysis is dealt with in a paper that specifically looks at the powers to unlock smartphones, drawing from the Code of Criminal Procedure, 1973 – the procedural law governing criminal cases in India. This indicates that specific legal provisions grant unbridled discretion to police officers, apart from a sinister sentiment living within our criminal justice system, deeply ingrained and practiced for decades. This results in consequences where criminal courts rarely scrutinize police for their investigative practices and evidence collection.
This is where one can find the answer to the questionable legality of the CBDT’s “survey action”, as pointed out by tax experts like Deepak Joshi. In “survey action” the investigating officers would independently conduct the more invasive, “search and seizure”, without any fear of sanction, or scrutiny over their powers. Oblivious to the limits and spirit of the text in the Income Tax Act, 1961, given the impossibility of direct political interests and any genuine sanction, the misuse will only increase.
Measure
In the absence of such checks and balances and in the unlikely event of systemic reforms, what is the role of the constitutional courts? Here, there is ample room to apply and develop the principles of freedom of the press. The first group needs to enforce the fundamental right to privacy Supreme Court’s decision In KS Puttaswamy Versus Union of India (2017). More than five years after the ruling was first announced, its application to the criminal justice system in cases of electronic evidence is awaited. is reviving DK Basu Guidelines There can also be a way out as relevant to Digital India. Digitization today requires stricter procedural safeguards, as noted by the United States Supreme Court. Riley v. State of California, It said: “Cell phones differ in both a quantitative and a qualitative sense from other items that may be placed on an arrested person.”
Such guidelines will only provide partial relief. This will require specific and clear declarations on facts that consider how legal processes have been abused in the equipment seizures of journalists. This recent trend is an adaptation of an earlier template where a powerful executive bypasses a direct response to a critical article and maliciously orders a legal investigation upon publication. Such mischievous government actions have been considered by the Supreme Court in several press freedom cases, leading to a partial expansion of the “direct and inevitable” to “effect and consequences” test.
However, as jurist Rajeev Dhavan observed in 1986, “the partial attention paid to the operational and institutional needs of the press … seems to have lapsed”. For decades there has indeed been a long and sad silence on the freedom of the press.
The Supreme Court needs to revive and apply the doctrine of “effect and consequence” to consider the broad canvas of executive actions that will shape the practices of our criminal courts. For example, in the case of the BBC, a relevant fact for the court to determine is not limited to allegations of tax evasion, but whether the investigation was motivated by a documentary that is critical of the prime minister. A free and fair press today requires not only journalists but also our courts to function without fear or favour.
Apar Gupta is the co-founder and executive director of the Internet Freedom Foundation, India