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Gagged and Criminalised: Journalism Critical of UP Govt Being Dubbed 'Fake News'

·8 min read

""I can't put into words how the case affected me mentally. The memory still haunts me. Each day, I contemplated going to the railway tracks to end my life."" - Pawan Kumar, accused of spreading fake news in Uttar Pradesh's Mirzapur district

On 21 August 2019, Pawan Kumar, a freelance journalist in Uttar Pradesh's Mirzapur town, while checking updates on his local journalists' WhatsApp group, received a document running to three pages. On downloading it, he realised it was a copy of an FIR that mentioned his name multiple times. Overnight, Kumar was accused of a criminal offence that he had no idea he had committed.

He was accused under Section 505 of the Indian Penal Code (IPC) for intentionally spreading "fake news" and "rumours" to "malign the image of the government", "create enmity between groups", and "incite violence and public disorder". However, all that he had actually done, was expose the allegedly appalling state of the UP government's mid-day meal scheme.

Kumar is one of the many local journalists in Uttar Pradesh targeted by the state government for running reports critical of it. The law penalising "fake news" is ambiguously worded and open-ended, enabling the government to not only hijack the discourse on truth, but actively scare and silence voices that attempt to expose uncomfortable facts.

The Quint retrieved government data, reports, and analysed orders from the trial courts in six districts in UP – Lucknow, Allahabad, Mirzapur, Kanpur, Varanasi, and Muzaffarnagar – to expose how the law on "fake news" has become a tool to criminalise, instead of seeking justice. We also met 11 freelance and investigative journalists from these districts to understand how the law is politicised to muzzle critical reportage, with the government even getting UP's criminal justice machinery to act as its vindictive cavalry.

Criminalised and Gagged

In 2017, Reporters Without Borders called India “Asia’s deadliest country for media personnel, ahead of both Pakistan and Afghanistan”. This assessment, however, is primarily based on crimes against journalists, state-sponsored censorship, and the dispensation of justice in cases of journalist killings. It doesn't capture the government's routine gagging of press freedom by resorting to a law that penalises "spreading rumours".

Section 505 of the Indian Penal Code lays down the offence of spreading a rumour with the intention to incite people to commit crime against the state, disturb public order, or generate hatred between religious or caste groups.

While there is no specific law in India that defines, regulates, or penalises "fake news" by press, the ambiguously worded Section 505 is actively exploited by the state to target the media.

<div class="paragraphs"><p>Gagging press freedom through fake news law.</p></div>

Gagging press freedom through fake news law.

As data suggests, cases registered under Section 505 of the IPC do not stand the test of a criminal trial. Most of them fall apart at the stage of framing the charges. However, as per the government's own data tabled before the Lok Sabha during Parliament's Monsoon Session, the registration of such cases has consistently risen since 2014.

The rising rate of arrests despite the negligible rate of conviction clearly exposes the modus operandi of the state's "gagging through crime". This practice suggests that the “fear” or the “chilling effect” is not instilled through actual convictions, but by subjecting journalists to the pains of the penal system where the process itself becomes the punishment.

Sanjeev Singh, an investigative journalist from Muzaffarnagar, realised the nature of this "gagging through crime" the moment police came to his house late at night in September 2020 to arrest him.

""They told me I'm accused of offences that penalise publishing child pornography, inciting violence, and creating public disorder. All I had done is to inform the local authorities about discrepancies in RT-PCR tests being conducted in the district. I knew, at that moment, that they just wanted me in jail because I had hurt their ego."" - Sanjeev Singh

Criminalising Critical Reportage in Uttar Pradesh

The Quint analysed court orders from the six districts to expose the length and breadth of misuse of fake news law by the state machinery. Our study revealed that Section 505 of the IPC is almost mechanically invoked against anyone who sticks their neck out to pose tough questions to the "establishment".

<div class="paragraphs"><p>Fake News Law: Tool To Silence Journalists </p></div>

Fake News Law: Tool To Silence Journalists

The law penalising "spreading of rumours" is disproportionately used against journalists. Also, apart from journalists, even social activists, union leaders, and political workers from Opposition parties, get caught in the net of fake news criminality.

<div class="paragraphs"><p>Fake News Law: Tool To Silence Journalists </p></div>

Fake News Law: Tool To Silence Journalists

The data clearly reflects that a majority of those who are arrested for allegedly spreading fake news are those who unsettle the government in power, or run foul of its ego.

The court orders reflect that even factual ground reportage critiquing the implementation of the UP government's policies is criminalised as an "attack on the government". Phrases such as "defaming the government", "speaking ill-will against the Chief Minister, Prime Minister", routinely appear in such FIRs.

The vocabulary of the FIRs registered against journalists exposes the political vindictiveness of such criminal cases. Section 505 of the IPC nowhere mentions "defamation of the government" or "ill-will against the Chief Minister or the Prime Minister" as grounds for invoking the provision.

<div class="paragraphs"><p>Fake News Law: Tool To Silence Journalists </p></div>

Fake News Law: Tool To Silence Journalists

The "gagging through crime" strategy ensures that journalists are put behind bars and kept there for extended periods of time even when they are not convicted by a court of law. This is where the criminal justice system often becomes reticent, and plays to the tune orchestrated by the political nature of these cases.

The orders reflect that the denial of bail by magistrates is almost mechanical, a clear deviation from the established principles of bail adjudication. Majority of magistrates cited "seriousness of offence" as a ground to reject bail. This is a patently unreasonable and a bizarre ground to deny bail as an offence under Section 505(1) carries imprisonment of only up to three years.

Moreover, these two-to-three-paragraph-long bail orders do not even care to test the veracity of the complaint against the journalist, or analyse the facts as per the triple test of bail adjudication: Tampering of evidence, influencing of witnesses, or flight risk.

The Real Cost of 'Media-Giri'

Our interviews with 11 freelance and investigative journalists from the six districts in UP humanised the disturbing data that emerged from the analysis.

Their narratives revealed how the costs of getting criminalised for critical reportage extends far beyond policing and incarceration – it substantially alters the journalist's mental and economic sustainability.

In these six districts of UP, Section 505 of the IPC became an instrument of political punishment instead of securing justice in public interest.

""I was a freelance journalist and my work got seriously affected. My sources turned my hostile, some of my informers were arrested without warrant. I have a huge debt on my head and I'm incurring losses. Not a day has gone by where I haven't contemplated committing suicide."" - Pawan Kumar

Kumar has moved away from full-time journalism and is now focusing on running his small mobile shop. Although he is hopeful of finding more journalistic work in future, his family wants him to exit the profession.

""My mother is against me pursuing journalism, she says I have a family to support. But nothing gives more meaning and respect to my life than journalism."" - Pawan Kumar

A criminal case brought shame to them and their families, even though they embraced it as a badge of honour. Most of them saw it a long time coming as they have been consistently doing critical reportage exposing the inefficiencies of the state machinery.

""The insults were too harsh, too hard to handle. People thought of me as a terror accused. Even though I knew the case is false and won't stand in a court of law, my reputation in society has been blotted."" - Abbas Sayid, investigative journalist in Allahabad ""I was targeted because I was writing a lot of critical accounts of the government, but they weren't finding a way to pin me down... I come from a family of journalists, so I could fight my battle, but there are many others who can't."" - Sanjeev Singh, investigative journalist in Muzaffarnagar

The journalists were acutely aware of the political nature of the cases against them. While it did help them in dealing with the trauma, it did not alleviate their suffering. They say they could tell that the cases against them were filed at the behest of the Chief Minister's Office or the District Magistrate's Office, and they worried about the safety of their local informers and sources.

""I remember when the police officer met me, he told me "Ye media-giri band kar do"."" - Pawan Kumar, a freelance journalist from Mirzapur

For some, this struggle, this journey for being targeted for speaking truth to power, made them fearless. It was a litmus test that they always feared, but once through it, there's nothing else to be scared of.

""I realised that describing facts as truth in our reportage is also 'a crime'. And once criminalised, I realised that I have nothing to fear. I believe, even more strongly now, that the truth must come out. Truth is in the benefit of both the society and the country."" - Pawan Kumar

Pawan Kumar's case is still pending, his innocence still hangs in purgatory. He was accused of spreading "fake news", the veracity of which was verified and confirmed by the district magistrate himself.

. Read more on Law by The Quint.Gagged and Criminalised: Journalism Critical of UP Govt Being Dubbed 'Fake News'CAT 2021 Registration Begins: Here's How to Fill the Application Form . Read more on Law by The Quint.

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