ABSTRACT
When it comes to the concept of rights as a whole, India’s determined efforts to ensure them have been seen from the development of the Constitution itself. The rights of the media have been enshrined in Article 19 of the Constitution itself impliedly with some reasonable restrictions which have been discussed in greater detail. Hence, the recent reports on the World Press Freedom Index and India’s position in the index create an air of controversy. The long-drawn debate about the rights of the media is again brought to the picturesque with the continuous derailing position of India in the Press Freedom Index. There are varying opinions among the masses where one supports that the rights of the media are curtailed while others disagree on the same. Whatever the stance, media is ‘the gold mine’ of a democracy like India which needs a proper shield and dictate so that the “fourth pillar of democracy” is not subdued. The research paper discusses India’s stance on media rights with leading cases and suggestions for the law-making authorities.
KEYWORDS
World Press Freedom Index, Media Rights, freedom, democracy, constitution, restrictions
INTRODUCTION
India has been toppling from its position in the World Press Freedom Index for the last 8 years starting from 2016 when it ranked 133 and currently ranks 161 out of 180 countries as of 2023 with a global score of 36.62. The World Press Freedom Index is an annual report on the freedom of the press which is published by Reporters Without Borders (RWB; French: Reporters sans Frontiers; RSF) on the eve of World Press Freedom Day (3rd May). The continuous decline of India’s position in the World Press Freedom Index is indicative of derailment of the media rights in India or failure on the part of the media or international diplomacy to curtail its position on the way towards international acclaim.
The term mass media essentially connotes that it is a form of ‘communication device’, which connects a large number of masses throughout the world. It dates back to the early 1800s when it was primarily conceived as print – media which includes Newspapers, Magazines, Booklets and Brochures. Previously, it was very difficult to access news. However, it has undergone a whole lot of changes with the inception of the internet as a form of communication system. It is available readily like the air we breathe. For a Democratic country like India, where media acts as ‘the fourth pillar of democracy’ serving as a means of representing the people at grass root levels. Media rights are very much essential to ensure that their role is not curtailed.
India being the largest democracy has the legacy of ensuring media rights. The Constitution of India, 1950 is the longest-written constitution in the World, and the supreme law of India safeguards media rights via Article 19. However, it is subjected to certain reasonable restrictions to prevent paramountcy.
The question which primarily hovers is whether media rights are ensured or are subjected to unreasonable restrictions which prevent them from functioning. As per the World Press Freedom Index, India has continuously underperformed in terms of ensuring media rights and its position has continuously declined since 2016 when it ranked 133, 136th rank in 2017, 138th rank in 2018, 140th rank in 2019, 142nd in 2020 & 2021, 150th in 2022 and 161th in 2023. The actual applicability of media rights in India is put to controversy on a global platform. The Indian government as well as the Press Council of India has refused to accept the World Press Freedom ranking terming its methodology as ‘questionable ‘ and ‘ non-transparent ‘as per the reports of the Times of India[1]. It is very dismaying to see that countries like Afghanistan and Pakistan have surpassed India in terms of Press Freedom and stand at 152nd and 150th rank, respectively. Hence, the credibility of the Press Freedom Index report is questioned.
RESEARCH METHODOLOGY
In terms of its nature, this research paper is mainly descriptive and theoretical. However, there are certain facts and figures which make it analytical as well. Comparative analysis is drawn based on the figures obtained which are based on self-evaluation. This research has been mainly conducted based on secondary sources which are already available and online databases based on critical analysis. Various journals have been used. Few primary sources like provisions, statutes and books have been used. An extensive study of media rights and their applicability has been conducted keeping in par with the World Press Freedom Index, to better understand the topic.
LITERATURE REVIEW
The concept of freedom of speech and expression, media rights and application of the provision of Article 19 is a subject of countless debates and discussions in India. The rights of the Media are not only restricted in India but it is also a matter of discourse throughout the world. The recent report on the World Press Freedom Index and the ranking of India leads to an air of distress as well as controversy. Some people question the credibility of the report published by Reporters Without Borders (RSF), while some believe that media rights are curtailed, others say that there is a failure on the part of the media itself and many more. Thus, there are a whole lot of different perspectives and opinions which creates ambiguity and requires an extensive study of the same.
The Constitution of India[2] is the primary source which deals with media rights. Though, it impliedly specifies the rights of the media vide Article 19(1)(a) of the Indian Constitution.[3]However, the rights of the media are subject to certain reasonable restrictions and are not absolute.
Romesh Thappar v. State of Madras isa landmark case about the rights of media. The Supreme Court stated that the right to speech and expression is an implied right of the media. It involves the right to propagate ideas as well as the right to circulation which is the very essence of Article 19(1)(a).[4]
The Supreme Court of India in various other cases has given varying precedents and judgements wherein the rights of the media are recognised with certain reasonable restrictions. However, the crux of the matter is that the role of media in a democracy is indispensable but restrictions are equally important.
There are various books and journals available on the topic of media which mainly make a descriptive approach to the topic. However, there are very few sources related to the present matter of discussion which draw an analysis of the World Freedom Index with the provisions of media rights. There can be an endless number of debates and discussions which can be done with this topic.
BRIEF HISTORY OF MASS MEDIA IN INDIA & MEDIA THEORIES
The term ‘Media’ is a plural form that means ‘mediums’, in essence, it means that it acts as a medium that connects people all around the world. According to the historical perspective, media was not conceived as an object (television, newspapers and so on) but rather as a means of communication. However, the present theorists conceive it as objects present in our immediate environment – media mediates messages to these objects.[5] The history of Mass Media in India dates back to the 18th century when the first newspaper, The Bengal Gazette, was published by James Augustus Hickey in 1780. It was followed by the introduction of the printing press. In the year 1818, the Samachar Darpan was published in Bengali which was the first Indian language newspaper. The 20th century was remarkable in the history of India as Radio broadcasting started in 1927. The establishment of the AIR (All India Radio) in 1936 served as an important source of infotainment for the people.[6]
Media Theories
Mr Dan Laughey in his book “Key Themes in Media Theory” compared a theory with a virus, like a virus, it spreads fear and trepidation among the students. The theory is essentially a way of thinking which is much more organised and sophisticated than thinking on an everyday basis.[7]
- Behaviourism and direct effect theory
It is also known as the ‘hypodermic syringe model’ of powerful effects. In simple terms, it involves the creation of a stimulus (media) and a response (from the audience) is the direct effect theory. It does not concern itself with long-term impacts, but rather a short-sighted approach.
- Cultivation Theory
In response to the Behaviourism and direct effect theory, the Cultivation theory came into being which was propounded by George Gerbner and his associates. It essentially focuses on the long-term effects of media. The way it is associated with social realities and the viewers cannot deny its importance in their everyday lives.
- Agenda-setting Theory
It is related to the Cultivation theory, focusing mainly on long-term effects. It helps to shape public opinion by addressing public issues and setting up agenda, to meet the social and political realities.
- Gratifications theory
This approach mainly focuses on the theories of consumerism rather than focusing on actual problems. It fulfils the needs and gratifications of the users. Audience requirements are the main intervention factor making it a short-sighted approach.
If we analyse the theories closely, one can say that the present media is mainly adhering to short-term effects and mainly bases its work upon the direct-effect theory & the gratification theory. It leads to the controversy whether the rights of the media guaranteed in Article 19 are hindered or there is a defect in the functioning of the media itself.
ARTICLE 19 & MEDIA RIGHTS
Article 19(1)(a) of the Indian Constitution states the freedom of the press, though it is not expressly mentioned. There is only the freedom of speech and expression as per the provision-
Article 19(1) All citizens shall have the right- To speech and expression[8]
In a democratic country like India, the right to speech and expression is a very essential right. It plays a vital role to ensure the proper functioning of a democracy. Every individual has the right to express their opinions, which involves the press as well. According to Dr BR Ambedkar, it was not necessary to expressly mention the freedom of the press as it is an implied right. The press, a powerful medium of mass communication, a medium which upholds public grievances, needs to be free so that people’s voice is not suppressed. Jawaharlal Nehru said “I would rather have a completely free press, with all the dangers involved in the wrong use of that freedom, than a suppressed or regulated press”.[9]
APPLICABILITY OF ARTICLE 19(1)(a)
The freedom of speech and expression is not solely restricted to the Indian Constitution. It extends its fangs over the entire world in some way or the other, like the Universal Declaration of Human Rights, the European Convention on Human Rights and Fundamental Freedoms, and many others.[10]There are various governmental and non-governmental organisations which ensure the same, one such organisation is the Reporters Without Borders (RSF) which defends and promotes media freedom.
RESTRICTIONS IMPOSED BY ARTICLE 19 (2)
Article 19 (2) specifies certain reasonable restrictions which are necessary for the efficient functioning of a democratic setup. Vidhi Centre for Legal Policy rightly mentioned that no right can be absolute, but at the same time, no right should be so restricted that hinders the very purpose of that right.[11] Hence, if the restrictions imposed are unreasonable to a prudent man it would not serve the purpose. The restrictions imposed should be reasonable and preserve the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality in relation to contempt of court, defamation or incitement to an offence.[12]
THE NECESSITY OF ARTICLE 19(2)-REASONABLE RESTRICTIONS ON THE MEDIA
Freedom of speech and expression is an essential right for preserving the backbone of a democracy. However, reasonable restrictions are equally important to preserve the social order because nothing can be absolute or completely unrestricted. There is an indispensable need for media in our present society, its primary role involves that it acts as the watchdog of the government, making the public aware, representing people, report undecided cases, it has the power to mould an individual’s thoughts and many more. Restrictions are necessary to preserve the security of the state, to recency and morality vide Section 292 to Section 294 of the IPC[13], to prevent Contempt of court[14], defamation vide Section 499 and Section 500 of the IPC[15] & incitement to an offence.[16]
TRIAL BY MEDIA & KANGAROO COURTS
Trial by media is not healthy for a democracy, it interferes with the working of the judicial system. It involves the pre-determination of judgement against the accused even before conducting any judicial proceedings, the phrase ‘kangaroo courts’ is used for such pre-judicial proceedings. Trial by media is implied via Article 19 of the constitution, it is not an absolute right.[17] In contemporary times, we have seen a lot of instances where the media has conducted the trial of an accused based on presumption, affecting the reputation of the individual, like ARYAN SHAH RUKH KHAN v. THE UNION OF INDIA[18] RHEA CHAKRABORTY v. THE STATE OF BIHAR & Ors.[19] SANJAY DUTT v. THE STATE[20], THE AYODHA DISPUTE and many more. Nowadays, the media is working solely to increase their profits and TRP (Television Rating Points) they tend to portray fake events and paid news, and the absence of objectivity affects the people’s perception in a negative way, leading to hatred among the masses, widespread disharmony is caused which affects various communities and sects of the society. Hence, at this point in time, the role of media and its working can be questioned.
LANDMARK CASES ON ARTICLE 19
Romesh Thappar v. State of Madras
The petitioner (Romesh Thappar) is the printer, publisher and editor of a recently started weekly journal named Cross Roads. The journal is published as well as printed in English, at Bombay. The respondent, the State of Madras raised the contention that the journal should be banned on grounds of public safety and maintenance of public order. The State of Madras mainly raised the contentions and exercised the powers levied under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949. A ban was imposed upon the entry and circulation of the Cross Roads journal in the state of Madras. An order was published by the state of Madras in the Gazette of Fort St. George. However, the petitioner claimed that there was an infringement of his fundamental right of speech and expression under Article 19(1)(a) as conferred by the Indian Constitution, 1950. The Supreme Court of India later on held that freedom of speech and expression is a very important right. In a democratic set-up like India where Media is the fourth pillar of democracy, it plays a very crucial role in society. The freedom of speech and expression impliedly states that the media has the freedom to propagate ideas and that freedom is ensured along with the right of circulation. Indeed, if the journal is not circulated publication would be of no value. Thus, the petition of the petitioner was allowed by the court of law.[21]
Indian Express Newspapers v. Union of India
The Supreme Court ordered the Central Government to re-evaluate its then taxation policies and whether they burdened the newspaper agencies. The petitioner (Indian Express Newspapers and others) argued that the taxation policy is burdening newspapers excessively. The customs duty on newspapers is resulting in a reduced circulation of newspapers and, thus, infringes the rights guaranteed in Article 19(1)(a) of freedom of speech and expression and Article 19(1)(g) freedom to engage in any profession. However, the government argued that it enacted the Act to ensure fair competition among newspaper agencies in the light of public interest. The Court noted that the freedom of the media is the heart and soul of socio-political relations. The government’s sheer power to levy taxes cannot restrain press freedom. The Court must uphold the press freedom and illegalise the acts and laws which violate that freedom. Thus, Court granted the petition[22].
Association for Democratic Reforms v. Union of India, November 2000
A petition was filed in Delhi High Court by the Association for Democratic Reforms to make the electoral process more transparent and fairer.[23]According to this petition, the Law Commission came up with recommendations like disclosing the personal background, including criminal record, academic qualifications, financial details and other essential details of the candidate to judge his capability to take part in the electoral process. The Court ruled that the Election Commission of India could acquire such information. However, the respondents argued that the Election Commission did not have the powers. They contended that the voters had no right to such information and filed an appeal against the decision in the Apex Court. The Supreme Court opined that one-sided information, misinformation, non-information, and disinformation create an ignorant populace, making democracy a joke. It further held that Article 19 (a)- freedom of speech and expression also consists of the freedom to hold opinions and not just the right to bestow and acquire information.
Maneka Gandhi v. Union of India
In this case the Hon’ble Supreme Court held that if the passport of any journalist is withdrawn to refrain them from expressing their views in foreign land, then it is an implication of the infringement of Article 19(1)(a). [24]
SUGGESTIONS AND CONCLUSIONS
The discussion around the topic of media rights in India is an endless one. The applicability of media rights on a ground level is really a matter of concern if we keep it parallel with the recent World Press Freedom Index. In order to overcome complexities, we should take certain measures like-
- The freedom of speech and expression ensured in Article 19(1)(a) must be ensured to all the citizens as well as the press at the grass root levels. The mere existence of rules without their practical application will be of no help.
- Along with a right there comes certain duties attached to that right. People must be mindful of their rights and utilise them judiciously keeping in mind the reasonable restrictions. For instance, if a person has the right to speech and expression, he should not say something which hampers the security of the state.
- There can be a neutral body or organisation which would see that the media is working effectively. It will ensure that the rights of the media are not curtailed, and at the same time, it will keep a check on the effective working of the media so that it won’t be able to do something illicit.
In the end, it can be very well said that the debate around the topic of whether media rights are ensured or not tends to be a ceaseless one. However, it should be noted that as per the World Press Freedom Index this sector of study needs more concern and developments in the future as it is the essence of a Democracy.
Urmila Biswas
Department of Law, Calcutta University
[1]Government does not subscribe to the Press Freedom Index, The Indian Express (March 28, 2023, 2:24 AM), https://indianexpress.com/article/india/government-does-not-subscribe-to-world-press-freedom-index-rankings-anurag-thakur-parliament-8521062/ (Last accessed on 8th May, 12:53 PM)
[2] The Constitution of India, 1950
[3] Supra note 2
[4] Supra note 2
[5] Dan Laughey, Key Themes in Media Theory, Open University Press (2007)
[6]History of Mass Media in India, Nimc -India, https://www.nimcindia.com/historymassmediaindia.html#:~:text=Indian%20media%20was%20active%20since,largest%20media%20of%20the%20world (Last accessed on 10th May at 10 AM)
[7] Supra note 5
[8] The Indian Constitution, 1950
[9] Freedom of Press – Article 19(1)(a), the Legal Services India, https://www.legalservicesindia.com/article/1847/Freedom-of-Press—Article-19(1)(a).html#:~:text=The%20heart%20of%20the%20declaration,media%20and%20regardless%20of%20frontiers.%E2%80%9D, (Last accessed on May 09, 2023, 9:00 AM )
[10] Freedom of Speech & Expression, BYJUS, https://byjus.com/free-ias-prep/freedom-of-speech/ (Last accessed on May 09, 2023, 9: 15 AM)
[11]Article 19 (2) & Public Order, Vidhi Legal Policy, https://vidhilegalpolicy.in/blog/article192andpublicorder/#:~:text=’Reasonable%20restrictions’%20as%20outlined%20in,or%20incitement%20to%20an%20offence, (Last accessed on May 09 ,2023, 9:30 AM)
[12] Supra note 5
[13] The Indian Penal Code, 1860
[14] The Contempt of Courts Act, 1971
[15] Supra note 13
[16] The General Clause Act
[17]Trial by Media, Drishti IAS, (May 09, 2023, 1:48 PM), https://www.drishtiias.com/daily-updates/daily-news-analysis/trial-by-media, (Last accessed on May 10th, 2023, 8:00 AM)
[18] Aryan Shah Rukh Khan v. The Union of India, Criminal Bail Appln. no. 3624 OF 2021
[19] Rhea Chakraborty v. The State of Bihar & Ors., Transfer Petition (Crl.) No.225 of 2020
[20] Sanjay Dutt v. The State, Special Leave Petition (Crl.) 1834-35 of 1994
[21] Romesh Thappar v. State of Madras ,1950 AIR 124, 1950 SCR 594
[22] Indian Express Newspapers (Bombay)(P)Ltd. V. Union of India, 1985 SCR (2) 287
[23] Union of India v. Association for Democratic Reforms, AIR 2001 Delhi 126
[24] Maneka Gandhi v. Union of India ,1978 AIR 597, 1978 SCR (2) 621
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