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Introduction
There is often confusion regarding the classification of the news media. Is it a 'business' under Article 19(1)(g) of the Constitution of India, or an activity deserving protection under Article 19(1)(a) as a right to freedom of speech and expression? This question is critical in determining the standards applicable to the conduct of the many news-providing outlets in India today.
The right to express opinions freely is critical in a democracy. Intellectuals have long championed it as a gateway to other liberties, positing that curtailment of free expression inevitably leads to restrictions on other rights such as the right to be informed. This right, however, is confused and equated with the necessity to overlook the media as a business (falling under Article 19(1) (g)), which is fundamentally flawed. The rights of a citizen and the rights of a media business owner fall under
different baskets and contours, and cannot be considered the same. Freedom of speech and expression includes freedom of circulation, to the extent that the ability to propagate one's expression is inherent in that freedom.1
However, a recipient of news and a publisher of news belong to fundamentally different interest groups. This is precisely why expressing an opinion per se and the business of publishing/circulating news have been so clearly distinguished by our law makers. Both, therefore, need different levels of oversight to ensure that a later right enshrined in Article 19(1) (g) does not abrogate or limit the rights enshrined in Article 19(1) (a). Press freedom under Article 19(1) (g) has to be secured as such to allow the public to be well informed. Also, the democratic credentials of a state are judged today by how mindful the press is to ensure that the ordinary citizen actually gets the right to free speech and expression—to enable an effective democracy—and that such a right is not denied to them for commercial ends.
The Constitution, the supreme law of the land, guarantees freedom of speech and expression under Article 19, which deals with 'Protection of certain rights regarding freedom of speech, etc.' Clause (1)(a) of Article 19 states, “All citizens shall have the right to freedom of speech and expression.” The open discussion of ideas allows individuals to fully participate in political life, making informed decisions and strengthening society as a result—especially in a large democracy such as India. The placement of Article 19 within the Constitution is revealing—it is found in Part III and is therefore a 'fundamental right'. Pertinently, Part III of the Constitution does not only confer fundamental rights but also confirms their existence and gives them protection.
Hence, even a right to enforce a fundamental right by moving the Supreme Court is guaranteed under Article 32 of the Constitution as a fundamental right. Further, fundamental rights form a part
While there are certain
Article 19(1) (a) draws inspiration from the First Amendment to the United States Constitution, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
A key difference is that in the US Constitution freedom of the press is explicitly safeguarded. In the US, free speech can be restricted through defamation laws or because of national security concerns, but the courts have allowed the press much leeway when discussing and criticising issues pertaining to public life. Famously, in New York Times Co. v Sullivan3, the Supreme Court of the United States said that “discussing the stewardship of public officials” was fundamental to their form of government. A strong line was taken against behaviour that threatened free speech for the sake of offended politicians. Censorship of the press was antithetical to the American way of life envisioned by the
However, the Indian news press enjoys two-fold protection, namely the freedom of speech and expression guaranteed under Article 19(1) (a) and the freedom to engage in any profession, occupation, trade, industry or business, guaranteed under Article 19(1) (g). Problems arise when Article 19(1) (a) and (g) are read to be one and the same and even the oversight and restrictions in the interest of the 'general public' contemplated under Article 19(6) are ignored because of this confusion.
Restrictions on the freedom of media
In India, the rights of a person engaged in the media business are covered under Article 19(1) (g) subject to restrictions under Article 19(6) whereas the rights of the general public to freedom of speech and expression are covered under Article 19(1) (a), subject to restrictions under Article 19(2). According to Article 19(2), “reasonable restrictions on the exercise of the right conferred by” Article 19(1) (a) may be lawfully enacted. The eight circumstances in which this fundamental right may be curtailed are wide-ranging. Vague criteria such as 'decency and morality' and 'friendly relations with foreign states' lay a heavy burden of discretion on the judiciary. However, some restrictions are necessary as press rights must not be allowed to overrun the rights of individuals and the interests of society.
Article 19(2) does not by itself curtail the right to free speech and expression—it allows other laws to be made which may have that effect. As clearly stated in Sakal Papers v Union of India5, executive orders cannot be made to restrict Article 19(1) (a) using 19(2) as justification; the restriction must have the authority of law. Furthermore, the determination of whether the restriction is reasonable or not should be made on a case by case basis6, as a general standard could not adequately cover the range of circumstances in which restrictions may apply. This will ensure that the “practical results” of actions taken by the state are properly considered—to avoid cases of disproportionate restriction—along with their legal form.7
Entities engaged in the business of news/media have emerged as a prime source of information, helping people to cultivate opinions on the political, economic and social situation in the country. The traditional print media still retains influence and television is widely popular, but public opinion, especially of the youth, can be gauged through social networking platforms and the so-called 'new media'. In this way, the media continues its role as a kind of non-formal educator, helping citizens to make judgments, often by presenting views which are contrary to those of the government.8 This vaunted position occupied by the media, including surveying the judiciary, executive and legislature
Contempt of Court
The press and the judiciary have a complex relationship: on the one hand, justice must be seen to be done, and the press are crucial in providing details of proceedings and ensuring that justice is administered. The same coverage, may, however, interfere with the administration of justice, or influence judges. Contempt of court (whether civil or criminal) thereby forms one of the restrictions on Article 19(1)(g), and reasonable means of countering it can be found in the Constitution itself 9 and in other legislation like The Contempt of Courts Act, 1971. Civil contempt of court is relatively simple: it involves wilfully disobeying or breaching a judgment or direction of the court. Criminal contempt, however, is more nebulously defined. It punishes those acts (including publication), which interfere with judicial proceedings, and also those, which 'scandalise' the court, thereby lowering its authority.
The difficulty arises in trying to define what would scandalise the court, leaving the term open to interpretation. Judges must, therefore, recognise what constitutes legitimate criticism and distinguish it from attacks which demean the court's dignity. While the provisions noted above do restrict free speech, they are also necessary to safeguard justice, and the faith of the people in the institutions which dispense it. The courts have shown themselves to be aware of the balance required, and have ruled that limits of decency and fairness10 must apply so that contempt law is not used to muzzle free discussion.
Defamation
Another offence with both civil and criminal aspects which the media frequently encounters is defamation, and the laws protecting reputation. Under section 499 of the Indian Penal Code, defamation is a criminal offence, punishable by a fine and/or imprisonment. Defendants may rely on ten exceptions listed in the IPC, including true statements made for the public good. The fact that defamation has been retained as a criminal offence is often criticised, especially from a free-speech perspective.
The argument has also been made that the international standard is increasingly against criminalisation of defamation. Opinions on public conduct of public servants, when made in good faith, are exempted from criminal defamation, but that has not stopped politicians from using the threat of criminal sanctions to silence unfavourable media reports. While criminal sanctions can be
There is no statute clearly defining the civil law of defamation. As a tort, it is governed by case law and relies upon principles thus developed. The civil law is overwhelmingly focussed on libel, which makes the press particularly susceptible to it. In such cases, the offending statements must satisfy four requirements. They must be: false, written, defamatory and published. For offended parties, in most cases, damages are the only recourse. Preventing defamatory statements from being published is very difficult, precisely because of the threat to free speech presented by such pre-publication injunctions. Thus, by the time action can be taken, the damage to the reputation of the victim is already done and printed apologies and monetary damages can only be so much consolation. Furthermore, recovery of damages could take an inordinately long time considering the pace of the legal system in India, whereas a criminal case is likely to be resolved more quickly.
The situation of private individuals and public figures differs greatly. Public figures executing public duties are bound to be scrutinised, and the courts have affirmed that debate in this regard should be uninhibited. The Supreme Court of India held in R Rajagopal v State of Tamil Nadu11 that the right of public officials to sue for damages is severely restricted, they may only do so if the defamatory statements regarding their official actions were made with 'reckless disregard for the truth' (following the malice requirement from Sullivan). For private citizens, the difficulties in going up against media groups, which may have wide- reaching influence and deep pockets, are clear.
However, they are also protected by a right to privacy, which forms part of their fundamental rights guaranteed under Article 21 of the Constitution. While privacy is not a constitutional protection expressly provided, the judgment in R Rajagopal confirms that even true statements published without consent may be damaging, reinforcing the idea that privacy is inherent in the right to personal liberty. The government has tried to circumvent these laws before. In 1988, Rajiv Gandhi, who had come to power with an unprecedented majority, attempted to pass the Anti-Defamation Bill. The proposed Bill was vaguely worded and widely viewed as an attempt to combat the criticism levelled at him by the press. However, it was met with such vehement opposition, including protests involving prominent members of the press, that the idea was dropped.
Sedition
Criticism of public officials may be acceptable so long as truthfulness is involved, but critics must be wary of another type of defamation, namely defamation against the state. Better known as sedition, defamation of the state is an offence under section 124A of the Indian Penal Code, 1860, and conviction can lead to life imprisonment. The offence is specified in the following terms: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.” The scope of the provision is very wide, both in terms of what constitutes sedition and how seditious acts are determined. The objective may be noble—to protect the integrity of the government—but its compatibility with free speech and a rigorous free press is questionable.
The definition in section 124A is troublesome; according to the explanatory notes, “disaffection” towards the government includes “disloyalty and all feelings of enmity.” Any criticism of the government could be seen as disloyalty, but part of the role of the media is precisely to criticise aspects of the government which do not seem to be functioning in ways that best serve the people. Political dissent is a necessary part of a vibrant democracy, ensuring dynamism and legitimacy. The courts have recognised this, and narrowed the circumstances in which the protection against sedition could be used.
The constitutionality of section 124A, while challenged, was upheld in Kedar Nath Singh v State of Bihar.12 However, the Supreme Court held that a seditious expression would have to incite “public disorder by acts of violence”. This was to be distinguished from legitimate criticism of government policies and lawful expressions of dissatisfaction. Using the sedition law to curtail these expressions would be unreasonably restricting the fundamental rights guaranteed under Article 19 of the Constitution, and would make the law unconstitutional.13 The media seems well protected in this regard, since short of calling for a violent revolution, they are free to exercise their rights.
The law for protection against sedition is still problematic, however. Recent cases have shown charges being brought without the 'incitement to violence' requirement being satisfied. Possession of Maoist literature was enough to sentence Dr. Binayak Sen to life in prison. A few years later, Aseem Trivedi was charged with sedition for drawing cartoons depicting the state as corrupt. Although the courts threw the charges out eventually, the knee-jerk reaction of trying to use sedition is deeply troubling and indicative of the mindset of the government.
India's stance on sedition has been criticised internationally and domestically, as it presents serious questions about media freedom. To what extent can the media comment freely about the actions of the government, and the implications thereof to the nation? Those who support free discussion could argue that offence is the price to be paid for comprehensive analysis of issues. Drawing a distinction between the state and its officials and policymakers seems arbitrary; journalists are free to
There has been opposition to sedition laws in India since the Constitution came into force. Nehru, speaking before Parliament on the issue of the First Amendment, said, “...so far as I am concerned that particular Section [124-A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways...” Nehru's mention of 'historical reasons' has particular resonance in India, recalling the stringent use of laws (including sedition) to quash discussions of freedom and independence. The suggestion that there might be 'other ways'—better ways—to deal with public disorder and violence is supported by the way Article 19 was written. Drafts of the Constitution considered the use of the word 'sedition' when limiting free speech, but this idea was ultimately rejected.14
New Media Risks
With the rise of new media, there is a particular risk to those using the internet to communicate— citizen journalists, users of social networks, and, indeed, those writing on websites of traditional media outlets. Apart from the restrictions discussed above, when computers are involved, users must be wary of section 66A of the Information Technology Act, 2000. One of the more controversial provisions of recent times, it allows up to three years' imprisonment for using a computer to send messages that are 'grossly offensive' or have 'menacing character'. Transmissions which cause annoyance and insult are also included in section 66A. These terms are not clearly defined and leave room for misuse.
The internet provides avenues of expression which could not have been previously anticipated. Social networks such as Twitter and Facebook encourage retransmission (retweets) and approval (likes) of posts not originally created by the user. While certainly a form of expression and thus protected under Article 19(1) (a), these actions also come under the Information Technology Act. For this reason one could be jailed simply for 'liking' a post which was deemed to be offensive.
Many users who could be prosecuted in this way may not be aware of the risks they take when ostensibly exercising their fundamental constitutional rights. It is not feasible to suggest that the government try to clamp down on every expression which may be offensive. Some clear indicator of when the legislation must kick in is required to bring the Information Technology Act in line with Article 19(2); otherwise, it will unconstitutionally fetter Article 19(1) (a).
In some instances, the Information Technology Act overlaps with other provisions, with the only distinction being that one form of expression is online while the others are not. The definition of
Private defamation actions can also pose a risk to fundamental rights. The relative economic strength of the parties can determine whether or not they can be censored. Wealthy parties can initiate 'Strategic lawsuits against public participation' (SLAPPs), which may not have sturdy legal underpinnings, but can force an opponent into court. SLAPPs may also involve tactics such as suing in remote jurisdictions, or those with only tenuous links to the case, to further discourage opposition. Defendants are then required to mount another legal battle to resolve this.15 Legal proceedings may take a great deal of time to resolve, and as the attending costs swell, smaller parties may find themselves forced to back down or settle. These lawsuits are increasingly being used as deterrents, particularly against bloggers.16 This is contrary to the legal principle that justice should not be sold, which was acknowledged as far back as in 1215, with the Magna Carta.17
Media freedom on the internet is also threatened by total censorship. There have been efforts by the government to block content online, particularly on blogs and social networks. Recently this was attempted to thwart social unrest in the Northeast. It seems unlikely that a blackout would do more to alleviate panic than responsible dissemination of information by the government and the media. Historically, such censorial measures have been directed at the press to prevent unfavourable coverage, most notably during the period of Emergency when laws like the Prevention of Publication of Objectionable Matters Ordinance were passed.
Television
One disadvantage faced by newspapers and internet sources is that they have only limited appeal to illiterate and semi-literate audiences. The internet especially provides information and pages in English, which is an inhibiting factor18 to many potential users. Television, on the other hand, does not face such worries. With 153 million (and growing) television-owning households,19 the influence wielded by television channels and news providers in India is not to be underestimated. While this might seem encouraging for the flow of information and exercise of free speech, in fact, the government has taken steps to ensure it still exercises control over what is aired. The government of India is responsible for granting licenses to television channels, and also exercises a regulatory function which could be chilling to free speech.
One example of this insidious practice is the development of policy guidelines by the Ministry of Information and Broadcasting for up-linking and down-linking television channels in India which include provisions for content control. Broadcast content is monitored and controlled according to Clause 5 of the Policy Guidelines for Uplinking of Television Channels from India.20 Clause 8 of the same document allows suspension and cancellation of permission to uplink, based in part on broadcast content.
Finally, Clause 10 stipulates that the decision to renew permissions can take into consideration whether any content 'code' has been violated. These clauses combined21 create an environment where, potentially, the very existence of a television channel may be dependent on government- friendly broadcasts. While regulation of technical issues, such as that of airwave usage is necessary, content regulation appears to be interference contrary to accepted Supreme Court rulings that “Freedom of press…means freedom from interference from authority which would have the effect of interference with the content and circulation [of newspapers]”.22
Another grave drawback of these guidelines is the lack of a suitable appeals mechanism. Although clause 5.2 of the Uplinking Guidelines does make reference to the Programme & Advertising Codes,23 clause 8.1 states that any 'objectionable' content can be blocked; presumably this includes reports critical of government activities. The Central government cannot be expected to adjudicate upon cases to which it may be a party24 in lieu of an independent tribunal or court. In any case, content control directly affects the freedom of speech and expression as guaranteed by Article 19(1) (a), and that right can only be abrogated by reasonable legislation. The executive (through the Ministry of Information and Broadcasting) cannot unilaterally make such a restriction, especially when the possibility of questioning the decision is also limited.
International Obligations
India is part of the international community, and has certain legal obligations regarding the freedom of expression. Article 253 empowers Parliament to make laws for implementing international agreements. International interaction is no longer the preserve of those privileged enough to travel. India is a party to the United Nations Charter, which is the governing document of the United Nations, the largest and most inclusive international organisation in the world. In the 1940s, India supported the Universal Declaration of Human Rights (UDHR); the definitions specified in that document are key to understanding the United Nations Charter. Article 19 of the UDHR provides for freedom of opinion and expression “through any media”.
Additionally, India ratified the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR safeguards freedom of expression in addition to other fundamental rights. It is
Conclusion
While any restrictions of free speech and expression must be reasonable, there is no provision exhorting the individual to be reasonable in the exercise of their rights. It could be argued, in fact, that, “If liberty means anything at all, it means the right to tell people what they do not want to hear.”25 Nevertheless, the right to free speech and expression does not exist in a vacuum, and must be balanced with other rights. It is in maintaining this balance that the idea of responsibility as part of a right comes into play. Thus the tension between freedom of expression and intervention by authorities remains. As noted above, the reasonableness of restrictions on freedom of speech are decided on a case by case basis. Any intervention by the state would be dictated by societal standards of acceptability. The laws currently in place show the state will step in to prevent violence and harm to reputations. The popular reactions to other government measures, such as the policing of the internet, show that in these cases the government seems to be going too far.
Once the way is clear for the government to intervene, the extent and result of that intervention must be specified. There needs to be a clearly-defined spectrum, with cautions or fines at one end, and imprisonment at the other, which can be applied to reign in infringing expressions. The punishment will, of course, depend on the circumstances of the intervention, with proportionality the key principle to follow.
While individuals will have to rely on authorities being fair and just, the media industry may be able to pre-empt government action. If the industry was to regulate itself, any offences could be dealt with at that level. In order to maintain effective self-regulation, the industry first needs to create an architecture which supports it. In the first place, any industry association or body responsible for regulation would need universal membership. Allowing potential members to opt-out defeats the point of self-regulation and leaves the system vulnerable. In addition, the association should endorse a basic code of ethics and guidelines on transparency, so that providers of news adhere to a minimum standard. Finally, it is important that this association or advisory body has real punitive powers. The threat of real and meaningful sanctions—beyond fines which may not even register with corporate-sponsored entities— must be used to ensure press quality.
As with any suggestion of introducing new laws or administrative bodies, balance is integral to the equation; the two must work in tandem. If reliance on the independent regulator is too great, then there is a risk that the regulator will act unilaterally, side-stepping legal scrutiny. At the same time, the level of discretion afforded to judges should not be such that the regulator is undermined. The judiciary and the administrative sector must support each other.
1. Romesh Thapar v State of Madras [1950] SCR 594
2. Kesavananda Bharti v State of Kerala AIR [1973] SC 1461
3. [1964] 376 US 254
4. James Madison, speaking to the US Congress in 1794
5. AIR [1962] SC 305 para 863
6. State of Madras v V G Row [1952] SCR 597
7. Dwarkadas Shrinivas v The Sholapur Spinning & Weaving Co Ltd. [1954] SCR 674
8. Indian Express Newspapers (Bombay) Ltd v Union of India [1985] SCR (2) 287
9. Articles 129 and 215 allow the Supreme and High Courts respectively to punish for contempt of court
10. See Indirect Tax Practitioners Assn v RK Jain [2010] “Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is a total lack of objectivity or there is a deliberate attempt to denigrate the institution then the Court would use this power;”
11. AIR [1995] SC 264
12. AIR [1962] SC 955
13. Raj Bahadur Gond v State of Hyderabad AIR [1953] HYD 277
14. See Fazl Ali, J in Brij Bhushan and Anr v State of Delhi [1950] SCR 245
15. The Editors and Publishers, “The Supreme Court stays IIPM case against The Caravan in Silchar” The Caravan
16. Samir Nazareth, “When law is blind” The Hindu (Chennai, 1 March 2013) <http://www.thehindu.com/opinion/ op-ed/when-law-is-blind/article4465431.ece>, accessed 5 March 2013
17. “To no one will we sell, to no one will we refuse or delay, right or justice.” Magna Carta, 1215 Chapter 40 in William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction (Maclehose 1914), accessed from <http://oll.libertyfund.org/title/338/48747> 3 March 2013
18. Internet and Mobile Association of India, Vernacular Report 2012 p4
19. 'India at a Glance', Television Audience Measurement (India), TAM Annual Universe Update 2013, accessed from
<http://www.tamindia.com/tamindia/NL_Tam/Overview_Universe_Update_2013.pdf> 5 March 2013
20. Policy Guidelines for Uplinking of Television Channels from India, Ministry of Information and Broadcasting File No: 1501/34//2009-TV(I), dated 5 December 2011, accessed from <http://mib.nic.in/writereaddata/ html_en_files/tvchannels/FinalUplinkingGuidelines05.12.2011.pdf > 5 March 2013
21. including the corresponding clauses in the Policy Guidelines for Downlinking of Television Channels from India, Ministry of Information and Broadcasting file accessed from <http://mib.nic.in/writereaddata/ html_en_files/tvchannels/FinalDownlinking05.12.11.pdf> 5 March 2013
22. See note viii
23. See note xx - “...as laid down in the Cable Television Networks (Regulation) Act, 1995 and the Rules framed there under.”
24. “We express our satisfaction that the Central Government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a court or tribunal.” K A Abbas v Union of India [1970] 2 SCC 780
25. George Orwell, “The Freedom of the Press” (first published: The Times Literary Supplement 15 September 1972), accessed from <http://www.orwell.ru/library/novels/Animal_Farm/english/efp_go> 3 March 2013
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Dr Rajeswari (Raji) Pillai Rajagopalan is the Director of the Centre for Security, Strategy and Technology (CSST) at the Observer Research Foundation, New Delhi. Dr ...
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