The Miami Herald, famous for its investigative journalism that has immensely benefited criminal justice reforms, has been running a series called “Cruel and Unusual”, which tracks human rights abuses in Florida’s prisons. The series’ name has been inspired by the Eighth Amendment of the American Constitution, which prohibits the state from inflicting “cruel and unusual punishment, including torture”. Each of these stories provides a vivid picture of bloodcurdling brutalities inflicted upon the inmates. On 8 August, the newspaper profiled Harold Hempstead, and inmate who with the help of persistent journalists, exposed the shocking scandals. Earlier in 2012, ProPublica, another investigative journalism outlet, drew up a list of the best reporting on America’s prisons and the invaluable impact those reports had on administration of justice.

In India, where prisons are no less horrible, achieving this would have been difficult because of authorities’ despotism, the labyrinthine alleys of prison rules of different states, and an overall aversion to accountability. And now, with the Ministry of Home Affairs’ guidelines to regulate the entry and conduct of those seeking to interview inmates, what was earlier difficult would become onerous, or worse, almost next to impossible.

As is widely known by now but never admitted by the government, the guidelines were ostensibly necessitated because of the fiasco over the Leslie Udwin documentary “India’s Daughter” – a fiasco entirely of the government’s making, and which has now made its way to the Delhi High Court. Criticism of the guidelines have centered primarily around how dictatorial this government is – almost resurrecting the dark days of the Emergency, and how this measure is a violation of the media’s freedom and rights. However, the soaring rhetoric of lambasting the government and focusing only on a narrow reading of the rights of both prisoners and the media doesn’t do complete justice to the issue.

The truth is that in India, prisoners’ rights and the need to communicate to the public, in, and through the media, have not been given adequate recognition. The Prison Act of 1984 has Section 59 (a) – which allows an inmate to communicate with his family, legal representatives and friends. Different states have their own prison rules, which further define and regulate this right. There have been cases where certain regulations were found to be too overbearing and hence violative of prisoners’ free speech rights (which are only curtailed to a reasonable extent and not completely taken away or lost upon incarceration). For instance, excessive surveillance of correspondence by the police’s special branch, or refusal to allow a journalist to interview people jailed for being Naxalites, or completely barring media’s access to undertrials and convicts accused and sentenced for terror offences, have been struck down by courts in the past.

The Supreme Court, in two famous decisions – Sheela Barse and Prabha Dutt – has held that journalists are to be considered “friends” of prisoners, and hence, unless there are reasonable grounds, such as safety and security. However, it refrained from explicitly articulating what the bounds of “reasonable” would be, and thereby reposed undue faith in the wisdom and judiciousness of prison authorities. All in all, beyond rhetorical proclamations on media freedom and a plethora of inmates’ rights, the case law doesn’t amount to much, at least not substantially.

Udwin’s reporting, and the consequent sensationalist caper (by now, a distinguishing feature of the Indian media) has occasioned the government crackdown, but the sweeping power vested in the Jail Superintendent – who now also has to seek the nod from the Home Ministry – would deal a body blow to investigative journalism. They would, if implanted rigidly and rigorously, would make news-gathering well nigh impossible.

If the Jail Superintendent is constantly hovering around, which inmate would dare to ignore his stentorian gaze and tell a reporter of the thrashings routinely administered to him? If photography or video recordings are prohibited on the grounds that they can lead to “security risks” and “social or communal disturbance” (the guidelines don’t define these terms, which of course suits the jailors and government fine), an Arun Ferriera or other “Naxalite” prisoners and those Muslims charged with terrorism would never be able to tell the world of the torture they are being made to endure. They would never be able to protest their innocence, even if outside the prison walls. They are fighting cases in court and being subjected to a torrid trial in, and by the media. And, if any “objectionable” content is to be deleted, then what remains?

It could possibly be argued that since prisoners’ letters are not censored, perhaps a political prisoner Kobad Ghandy or Professor Saibaba can still write something like “Letter from Birmingham Jail”. But, even if letters can have a deeper impact, than any number of broadcast interviews, as constitutional scholars Lyrissa Barnett Lidsky and R. George Wright state, a “televised interview may convey a sense of visual immediacy and dynamism far beyond the capacity of typical letter writing or letter reading”.

In 2000, Britain’s House of Lords while holding that investigative journalism in prisons plays a critical role in exposing and mitigating miscarriages of justice, struck down the government’s prison directive, which bears a startling similarity to the MHA’s guidelines. The judges went on to mention and elaborate upon at least ten cases where media investigation played a stellar role in the inmates’ convictions being overturned. They also said how restrictions on access impinge upon press freedom by blocking critical avenues of news-gathering. And, as the United States Supreme Court held in 1971- “right to free press could be eviscerated if there was no corollary right to gather news.”

A necessary caveat – it isn’t the case that the media coverage of prisons and prisoners is always beneficial, especially if done with intention to sensationalise. It can be counterproductive also, albeit unwittingly. For instance, last year, The Washington Post carried a long story on how the juvenile convicted for the 2012 Delhi gangrape was spending his days in the correctional unit, trying to reform himself. It unleashed a torrent of vicious abuse in social media, and even some op-eds (one example here) – with many outraged souls gnashing their teeth at the “comfort he was enjoying” and essentially baying for his blood. So, journalists must act out of abundant caution, lest their reports end up causing irreparable damage.

Nonetheless, it doesn’t absolve the government in any way. Research from America, which has the largest prison inmate population and some of the most gruesome cases of prisoner abuse shows how restrictive access policies of jails curtail media freedom. Those aghast at the MHA’s diktat could well embark upon a similar exercise, and make out a more robust case against the guidelines. Criticism of odious government actions must be trenchant, but it shouldn’t stop at that.