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Current Scenario of Law and Freedom of Press

Communication is the act of imparting or exchanging of information by various methods and media is the mode or instrument for communicating such information. The ‘Media’ the main means of mass communication denotes the print and electronic information carriers, viz. the newspapers, magazines, radio, television and presently, the Internet. Hence, called as the ‘fourth estate’, media is the watchdog of the public affairs and acts as the forum to advocate the views of the society at large to those who are in command of the public affairs.

Press is regarded as one of the pillars of a democracy as it acts as a watchdog of the three organs of democracy. Though, freedom of speech & expression (including of press) is enjoyed by the citizens but there are many instances where the press has to face difficulties as well.

In the recent past, in the Tehelka Case[1], the portal Tehelka.com was forced to shut down completely and its  journalists were continuously harassed as the journalists exposed the ‘scam’ in the defense ministry involving Ex-Defense Personnel and Central Government Ministers. There are many instances where journalists were threatened and even assaulted at times.

1. Morality and Decency

One of the restrictions imposed on right to freedom of press is in the interest of ‘morality’ and ‘decency’. There are several legislative provisions governing these two elements. Apart from these provisions there are some judicial precedents also. These two terms have no specific meanings. These change according to the value system of a given society. It changes from one generation to another and also from one Judge’s perspective to another.

In ChandraKant Kalayandas Kakodkar v. State of Maharashtra[2],

The Supreme Court observed that, “such notions vary from country to country depending on their moral standard. But even within the same country, like India as you cross a few hundred kilometers, morality changes at varying lengths. This makes it very difficult to straight jacket these concepts.”

  • The Indian Penal Code, 1860, section 292- 294 makes the sale, letting to hire, distribution, public exhibition, circulation, import, export and advertisement of obscene material an offence punishable with imprisonment and fine.
  • The Dramatic Performances Act, 1876, Preamble Section 3 (c): section 6 gives the government the power to prohibit public dramatic performances on the ground of obscenity and in case of violation imprisonment and fine follows.
  • The Post Office Act 1898, Section 20 prohibits the transmission by post any material on the ground of decency or obscenity.
  • The Cinematograph Act, 1952 – section 5B prohibits the certification of a film by the Censor Board for Public exhibition of the film or any part of it is against the interest of morality and decency.
  • The Young Persons (Harmful Publications), Act 1956 section 2 (a) 3-7, prohibits publications which could corrupt a child or young person and invite him to commit crimes of violence or cruelty etc. A contravention is punishable with imprisonment and fine.
  • The Customs Act 1962, section 11 (b) empowers the government to prohibit or improve conditions on the import or export of goods in the interest of decency and morality.
  • The Indecent Representation of Women (Prohibition), Act 1986 Section 3-6 prohibits the indecent representation of women through advertisements or other publications, writings, paintings, figures etc and makes the contravention punishable with imprisonment and fine.
  • The Cable Television Networks (Regulation), Act 1995 –section 5, 6, 16, 17, 19, 20 read with the Cable Television Network Rules, 1994 prohibits the telecast of programmes on cable television, which offend decency and morality and on contravention amounts to imprisonment and fine.
  • The Information Technology Act, 2000 section 67 makes the publication and transmission in electronic form of ‘material’ which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it – punishable with imprisonment and fine.

2. Vulnerable Matters

An ordinary citizen needs to know subjects and events of public interest. This right does not however go to the extent of knowing the name of the rape victim or family problem of a public figure. This information does not fall within the category of worthiness of the news.

It was stated in State of Punjab v. Gurmit Singh[3] that, “the identity of rape victims should be protected not only to save them from public humiliation but also to get the best available evidence which the victim may not be in a position to provide if she is in public.

In People’s Union for Civil Liberties v. Union of India[4] the Supreme Court further upheld the validity of section 30 of the Prevention of Terrorism Act, 2002, regarding holding of in-camera proceedings for the protection of a witness whose life is in danger. In these cases, the identity and address of the witness is kept secret. There are so many enactments providing in-camera procedures and protection of the identity and other details of persons associated with the case. So it is implicit in the Indian Law that private and confidential matters in certain cases should be given utmost protection. But this is not enough; it has to put in practice by the courts by strict gagging orders, as is done in UK where in Baby P abuse case[5] the High Court released the names of the couple who abused the toddler and in the process killed the baby, only after the case was decided and parties put in safe places. Indian Courts have to use their powers and not wait for the victim to ask for these protections.

  • The Indian Penal Code 1860, section 228-A- prohibits publication of the name of a victim of a sexual offence. Fair comment is allowed.
  • Indian Divorce Act 1869, Section 53– Proceedings under the Act may be heard behind closed doors in certain circumstances.
  • The Special Marriages Act 1954, section 33 – In-camera proceedings- if either party desires or Court decides.
  • The Hindu Marriage Act 1955, section 22– In-camera proceedings allowed if either party so desires or Court decides.
  • The Official Secrets Act 1923, section 14 – empowers the Court to exclude the public from proceedings if prejudicial to the safety of the state, subject to section 7.
  • The Contempt of Courts Act 1971, section 4 – prohibits publication of proceedings in-camera in certain cases.
  • The Prevention of Terrorism Act 2002, section 30 (repealed from 21st Sept 04) – permitted the holding of proceedings in-camera where the life of the witness was in danger.
  • The Children Act 1960, section 36– prohibition of names or photograph or address or school or any identity of children in any case be published, unless the authority feels it is in the interest of the child.
  • The Juvenile Justice (care and protection of children) Act 2000, section 21- prohibition of publication of name or photograph or address or school or any identity of a juvenile in conflict in any case in media or visual media unless the authority feels it is in the interest of the child.
  • Information Technology Act 2000, section 72- Breach of Confidentiality and Privacy- Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made there under, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extent to 2 years or with fine which may extent to one lakh rupees or both.
  • Right to Information Act 2005, section 8(1) (j)– Information which relates to personal matters the disclosure of which has no relation to any public activity or interest or which would cause unwarranted invasion of privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case maybe , is satisfied that the larger public interest justifies the disclosure of such information; provided that the information which cannot be denied to the Parliament or a State legislature shall not be denied to any person.

3. Contempt of Court

Contempt of Court happens not just when judges are criticized but also when matters which are sub-judice are discussed and criticized in the press. This results in lowering the role of the judiciary in the administration of justice. When the issue is before the Court, it is considered the duty of the media to allow the course of law to take place. They can report the matter to the court in a fair manner and not critically. They should wait for the final outcome of the case. This is the object behind the reasoning given by the Court in Rajendra Sail v. M.P. High Court Bar Association.[6]

The Supreme Court warned the media against sensationalizing of the issues and stressed that the press needed a strong internal system of self regulation. It said that, “the reach of the media is very large and large numbers of people believe it’s reporting to be true. This freedom of the press should be exercised in the interest of the public good.” The Court also stated that “the press should have an efficient mechanism to scrutinize the news reports pertaining to such institutions such as judiciary, which because of the nature of their office cannot reply to publications.

Thus, the freedom of the press should be used by them cautiously. Normally, truth and good faith have been recognized as defenses to charges of contempt. Now with the amendment of the Contempt of Courts Act 1971, truth has been made a legal defense to a charge of contempt. A trial by press, electronic media or public agitation is an antithesis to the rule of law. It can only lead to miscarriage of justice. Therefore, it may be contempt to publish an interview with the accused or a potential witness because there is always a likelihood that the trial is prejudiced by these publications or broadcasting. If the media in the process of reporting adds anything in excess to the actual proceedings in the Court, it no doubt amounts to interference with justice. In UK, where Courts are convinced of the fact that media has influenced the jury , then the case is taken away from that Court and posted to a Court far away from that area. In India, it is very difficult to prove that the judge has been influenced by the media talk. But there is no doubt that no person even if it is the judge can stop himself from keeping track of the news of the day. There is every possibility of not only the judges but also the witnesses getting influenced. The intention of the reporter to interfere with the administration of justice or not is immaterial in determining whether it constitutes contempt of court[7]. The possibility of influence has to be considered and not the intention of the journalist.

Recent Trends of Trial by Media

Recently the press, especially the electronic media has been very enthusiastic to grab and report it even before the Police or other channels get to know about it. This investigative journalism is good but at the same time it is going out of hand. There is no way to regulate it or stop it. Though we have the Press Council of India, which was established around twenty two years before, the electronic media will not come under its regime. The PCI entertains more than 10,000 complaints a year, has no teeth and the purpose is defeated as it evokes no fear or sanction. Simply an apology is demanded from the press, if found guilty. These types of liberal approaches are not going to remedy the harm caused by press reporting. More stringent measures are to be adopted to curb the malady though self-regulation can operate as a useful and viable tool. The Government in its zeal to bring liberalization in media has allowed foreign direct investment into it. The policy brought in 2003, permits unto 26% in print media, while in broadcasting, it is allowed unto 100%.[8] This is in a situation, where there is no law to control the tyranny of electronic media. With the doors open for the foreign media to invade India with their ideas and experiment with the Indian youth, the government is taking no urgent steps to bring in a regulation to control the widespread electronic media.

Powers of the Press Council

Section 14 of The Press Council Act, 1978, gives the PCI power to warn, admonish and censure the press. These are the only weapons available with the PCI for enforcement purposes. Therefore, the Press Council Act limits the PCI from taking stringent actions. It is supposed to be only a self-regulatory organ as the government always felt that freedom of press should be protected. For performing its functions, under section 14, the Council has been given the same powers as vested in a Civil Court while trying a case under the CPC. Along with this the PCI (Procedure for enquiry) Regulations, 1979 deal with the procedure for conducting enquiry. Any complaint under section 14 (1) and section 13 or the complaint taken up by the PCI Chairman suo moto have to follow the procedures stated in the above rules.

Mechanisms to Control Press & Electronic Media

The Press Council Act does not contain any strong provision to ensure compliance to the ethics and guidelines formulated by it. The reason being the Parliament expected that the code of ethics framed by the PCI will be followed in letter and spirit by the media. The danger of free media is still enhanced with the broadcasting through electronic media. There is no regulatory mechanism to supervise its working, except the one under the Cable Television Networks (Regulation) Act, 1995. The ministry of Information and Broadcasting was keen to bring a Broadcast Services Regulation Bill, but the Editor’s Guild of India stated in September 2007, that it did not accept the proposed bill, the reason being that this would give immense power to government over news and current affair channels. As a result the Bill did not become an Act. The Bill was to be introduced during the monsoon session of Parliament in 2007. It was withheld following protests by media who accused the government of trying to curb its freedom of expression[9]. Later the Ministry issued guidelines to build up a local mechanism that would enforce the programme code of the Cable Television Networks (Regulation) Act. Just like Film certification the programmes will have to be certified as Universal (U), which can be shown anytime, universally Adult (U/A), that can be telecast only between 8 PM and 4 PM and Adult (A) to be shown only between 11 PM to 4 AM. The PCI has stated that to honor the views of the readers, the newspapers should appoint a Readers’ Editor. In the present scenario, Readers’ Editors are termed also as Ombudsman. Following the practice in the Guardian, The Hindu has a Readers’ Editor. It is operational since March 2006. Ian Meyes, Readers’ Editor of the Guardian said in his January 2006 Lecture that it made the paper more responsive to their complaints. Recently, the newspaper gave some figures from March 06 to September 06 regarding public response. In the first two months the responses exceeded one thousand per month. E-mails formed the main channel of communication. The system of having a Content Auditor in broadcasting and Readers’ Editor in written press is limited to its object.

The object is to pacify the complainants by rectifying the errors and straightening the relationship. But in cases of grave errors, these should not be the course of action. Pacifying grave mistakes on the part of journalist and press, especially if it is done purposefully is a wrong practice. These matters are not compensated even by the Ombudsman of the Paper, i.e. the Readers’ Editor or by the PCI (The Chief Ombudsman for all papers). The bruises made and the agony caused is left untreated by one and all. This continuous act of defiance by the media is bound to cause deterioration of faith in the Press and can cause negative emotions to boil up. Any bruise left untreated will cause further harm if left unattended for long.

 Court on Media Control

From the Apex Court down to its hierarchy, there has been continuous pressure on media regulation. Gone are the days when media was in fact free in expressing its views and therefore had to struggle to get to the people. Today media is very powerful and is entangled in a series of interests. It could be in the nature of politics, advertisement, lobbying, and competition, commercialization, paid news or duplicating and copying the foreign media. Today, the Press can no more argue that it is free and independent and public interest oriented. Now a days, more than the news it is the motive behind the news and its prospected outcome, which prompts it to be published in the newspapers or broadcasted through the channels. The Courts have also therefore developed a stand to regulate media which was unheard of a few decades back. In 2008, a Magistrate Court in Egmore sentenced the Editor and the Publisher of ‘Dinamaler’ to undergo three months simple imprisonment in a defamation case.[10]

In another case, the Honorable Juvenile Court of, Thiruvanathapuram, objected to publication of an incident relating to two children with HIV/Aids. As a result PCI updated its guidelines on October 13th – 14th, 2008 on HIV/Aids. Even in Aarushi Talwar’s case, the Supreme Court directed the media to show restraint.[11] The PIL was seeking to protect the reputation of Aarushi’s family and requested to direct the Director General of Police of all states to ensure that no information is leaked to the media regarding a criminal case pending investigation.

In 2008, due to the delay in framing a Broadcasting Act, the Supreme Court upheld a Delhi High Court order maintaining that Telecom Regulatory Authority of India can regulate the Broadcast Services till a Broadcasting Act comes into being.[12]

CONCLUSION-

Freedom of speech and expression is a crucial human right which is important for a society to be democratic. It permits the free exchange of ideas, opinions and knowledge and thus allows members of the society to form their own opinions on problems of public importance. The aforesaid right serves public debate and supports a free and independent press, informed citizenship and the transparent functioning of the state.

Freedom of expression offers special rights and duties to the media. The media informs society on matters of public interest and make an important platform for public debate, scrutiny and reflection. Therefore, independent media and quality journalism are considered to be the “watchdog” of a democratic society.

The media have special rights, freedoms and duties because they have a special function as a “watchdog” in a democratic society.

Role as a “watchdog”

The media are entrusted with a very important role: to inform society about matters that are important to it and create a platform for public debate, reflection and scrutiny. Because of this role, independent and qualitative media are considered to be the “watchdog” of every democratic society.

Special rights, Freedoms & Protection

The media works for the advantage of the entire society to keep the public informed and ensuring that the public can scrutinize the work of government, politicians and other people who play an important role in society. Thus, they are afforded more freedom and protection. For example, they may use harsher terms in their criticism and protect their sources.

Duties & Responsibilities

However, these special rights and freedoms are not unlimited and they still involve duties and responsibilities. Journalists have a special responsibility towards society to publish truthful and verified information. A journalist’s freedom of expression may also be restricted if he/she overstep the boundaries of other people’s privacy and reputation.

The ground realities are that a citizen is largely dependent on the media and press for the quality, proportion, and the extent of news. He can seldom obtain for himself the information necessary for the intelligent discharge of his political duties and responsibilities. In disseminating news, the press therefore acts as a representative or, more appropriately, as the custodian of the public. It serves public interest in pluralistic democracy by permitting expression and opinions of all persons. Hence freedom of the press has a dimension and range that is vastly different from the ambit and content of other individual freedoms. The freedom of speech and expression including the freedom of press embodies the principle of accountability and thus enables press to be an instrument of democratic control. Protection and promotion of freedom of press is substance that sub serves and strengthens democracy, an essential feature of the Constitution.

Freedom of press is undoubtedly one of the basic freedom of press in a democratic society based on the Rule of law. None the less freedom of press is not an end in itself. The public function which belongs to the press makes it an obligation of honour to exercise this function with the fullest sense of responsibility.

[1] https://www.indiatoday.in/india/north/story/tehelka-case-victim-reaction-how-drunk-tarun-tejpal-raped-her-218828-2013-11-27

[2] Chandrakant Kalayandas Kakodkar v. State of Maharashtra(1969) 2 S.C.C. 687.

[3]  AIR 1976  2 S.C.C 384, pp. 404-05

[4] AIR 2004 9 S.C.C. 580

[5] ‘Couple named in Baby P abuse case’ Agency France –press ,London

[6] AIR(2005) 6 S.C.C. 109. para 31 atp. 125.

[7]  S.K. Sundaram: Inre,(2001) 2 S.C.C: A.I.R. 2001 S.C. 2374

[8] www. Dailymail.co.uk. A government appointed panel advises Indian government to increase FDI in print media from 26% to 49%

[9] The Asian Age, New Delhi dated 20th September 2007 (Report of P.C.I. 2007-08)

[10] The Hindu, (New Delhi), dated 28 March 2008.

[11] The Hindustan Times, (New Delhi), dated 13th July 2008 ( Annual Report of P.C.I. 2007-08).

[12] The Indian Express, (New Delhi), dated 4th January 2008 ( Annual Report of P.C.I.2007-08)

This article is authored by Arpita Deb, student of LL.B at University Law College, Gauhati University.

Also Read – Media and Minorities: Understanding the Ethical Issues of Freedom of Press in the Context of Rule of Law.

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