Written by Amit Dang, fourth year student at National Law University Odisha.
INTRODUCTION
From the genesis of the printing press by Gutenberg, history has witnessed numerous unsuccessful attempts to curb the dissemination of information by the authority. In 1538 CE, Italy was the first to have an ‘Index of Prohibited Books’; this was further followed by other European states. Works of Nicolaus Copernicus, Giovanni Boccaccio, and Niccolo Machiavelli were added to the list of prohibited books. The freedom of speech and expression was made an inalienable man’s right in the French Revolution and is considered an inseparable substantive element of democracy, set in Abrams v. Abrams. The freedom of the press or media is one of the domains of freedom of speech and cannot be curtailed. However, looking into the contemporary media situation in the 20th and 21st centuries. The accessibility, control and dissemination of information have altogether revolutionised. The invention of the internet and mobile devices has not only made the accessibility to information easier but has also handed over the power to generate and create new information. A new dilemma has emerged: the media is being used to promote propaganda. The authority or governments have always tried to control and regulate media for dissemination of their propaganda; the heightened historical account of such use was seen in Nazi Germany by Adolf Hitler. In contemporary democratic states, although there is no direct control over the media, but indirect control. The media houses are owned by businessmen whose political alignment and support are toward any political party affiliation, or are owned by family members or those directly involved in politics. The government is bringing in new laws to regulate the media, and there is apprehension about what the government can regulate or control that is being generated by the media.
CONSTITUTION AND MEDIA FREEDOM
The Black Law Dictionary defines ‘media’ as “Every broadcasting and narrow casting medium, like newspapers, magazines, TV, radio, billboards, direct mail, telephone, fax, and internet are part of what is the Media.” However, the traditional understanding of media refers to a medium which provides news and information, i.e newspapers, press and news channels. Though there has been a new evolution of news providing sources through digital devices and internet companies like YouTube. Due to this evolution, there is ambiguity in defining or delineation what is media and what is not media.
The right to freedom of the press is guaranteed in India by Article 19(1)(a) as Freedom of speech and expression, unlike in the US, where it explicitly states freedom of the press. However, this right is not absolute and is under the restrictions described under Article 19(2) as “ Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
So, Article 19 clearly outlines that under the grounds of “the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence” government can impose restriction on the circulation of information by the media.
However, these are vague and understanding of what will be constituted as “public order” has evolved from the three landmark judgements in the “Ramesh Thappar v. State of Madras (The Cross Road Newspaper), Brij Bhushan v. State of Delhi (Organiser Newspaper) and State of Bihar v. Shailabala (Bharati Press)” cases.
- “Ramesh Thappar v. State of Madras”: In this case the circulation of the crossroad newspaper was banned citing the Section 9(1-A) of the “Madras Maintenance of Public Order Act,1949” on the grounds of “public safety” and “public order” because it was feared that the content of the magazine might incite unrest during the period of communist agitation. The Supreme Court held that the restriction imposed on the circulation of the magazine does not fall within the narrow scope of “reasonable restriction” and is not permissible under Article 19(2).
- “Brij Bhushan v. State of Delhi”: In this case the Brij Bhushan challenged the censorship orders under section 7(1)(c) of the “East Punjab Public Safety Act 1949”. As per this act, the publisher is required to submit all the publishing material prior to the approval. The supreme court struck down the pre-censorship order and held that prior approval is an extreme restriction and it is to be imposed only in a situation of imminent danger or threat to public order.
- “State of Bihar v. Shailabala”: In this case, the Bihar Government demanded security from the Bharati Press for publishing a pamphlet, and it was alleged that it incited violence under section 4(1) of the “Indian Press (Emergency Powers) Act, 1931”. The Supreme Court examined whether it actually incited the violence and held that it should be proved that there existed an imminent threat. If not proved, then there cannot be a ground for restriction.
MEDIA REGULATION
Media, which are mostly preferred to visual television and digital, are self-regulated through the “News Broadcasting Standards Authority (NBSA)”, and the press or printed media is self-regulated by the “Press Council of India (PCI)” under the aegis of the “Press Council Act” of 1978. The self-regulation means there is monitoring of the work through its own rules and regulations. India and many countries in the world have the self-regulation mechanisms for the media because it is a general postulation that if the media of press comes under the regulation or control of government then it would mean intervention of media autonomy and freedom, ultimately violating the fundamental right under 19(1) freedom of “speech and expression”. The “Central News Media Accreditation Guidelines” are to be complied with by the electronic media houses, and if they are found to be broadcasting any false or fraudulent news, then the media house would face a penalty in the form of debarment form of accreditation up to a maximum of five years. Apart from that, there are internal mechanisms to fact-check the authenticity of the news.
The Ministry of Information and Broadcasting regulate the television content through acts such as the “Cable Television Networks (Regulation) Act 1995” and associated rules and codes. Furthermore, the “Broadcasting Services (Regulation) Bill, 2023” has proposed to modernize the regulatory framework for broadcasting in India in this digital age. It aims to replace the old “Cable Television Networks (Regulation) Act, 1995” and expands the scope to OTT content, IPTV, DTH and Digital news on the internet.
TWO-FACED DELIMMA
India’s position in the world freedom of the press index is 151. There has been a decline in the freedom of the press since the coming of the BJP government in 2014. The case of India is somewhat different from the other countries. There have been attacks on journalists, arbitrary arrests and imprisonment under the allegation of sedition. Business tycoons and politically aligned people own the media houses that promote the agendas of specific political ideologies.
This poses a great threat to the free press, which doesn’t disseminate any propaganda. Most of the media houses are either owned by politicians or business tycoons who have an inclination towards some political ideology or the government. Furthermore, the government has indirect control over small media houses and the press through the means of government advertisement. A large chunk of the monetary budget is allocated for the promotion of government schemes and achievements, and these small media houses rely on those advertisements so that they can make a profit. Since the media and newspapers in particular do not earn from the sale of newspapers, rather it sell newspapers, incurring a loss. It is through the advertisement that these media companies earn profits. And the more reach TV channels or newspapers have more revenue they generate.
On one side of the coin, the journalists are facing a threat to reporting the truth. Like in the case of Hatras conspiracy case in which journalist Siddique Kappan was arrested in October 2020 by Uttar Pradesh police who was in his way to cover the rape incident in Hatras. He was alleged of conspired to cause law and order; he was released in 2023 after two years.
Looking into another side of the coin, we see the media instead of being the fourth pillar of democracy, is slaying the democratic principles, making it a horse with three legs. In India, there are more than a thousand television channels, and half of them are news channels.
There is a neck-to-neck competition amongst them for the TRP rating, which is crucial for their source of advertisement revenue. The higher the TRP rating, the higher the bargaining power for displaying the advertisement on their channels. For achieving this, the news channels report false news to create a sensation and often neglect journalistic ethics.
CONCLUSION
The media is facing a crisis not from the claws of the authority, but has become spineless. The media houses and press are either becoming tools of propaganda or being targeted by the government agencies, and journalists are being imprisoned for reporting the news. The Journalists are pressurised not to question the government since the management and ownership of those media houses are in the hands of politicians and businessmen inclined towards ruling governments in the centre or state. Journalist are now creating their independent news reporting channels on platforms like YouTube where they can independently report news without any restriction. Thought there is no regulation in such digital platforms to fact-check the authenticity of the news and information, it can lead to the dissemination of fake news, imperilling the public tranquillity and order. For countering such a threat, the government has proposed the “Broadcasting Services (Regulation) Bill, 2023”, but there is apprehension of the government having the power to ban and restrict the reporting of news that criticises the government or its policies. There is a need for a comprehensive and balanced regulation framework which do not endanger the independent journalists and small media houses, and necessary to make the media press and television channels free from the control of political influence and people inclined towards any political ideologies.