ABUSE OF JOURNALISM: ARE THEY CONTRA CONSTITUTIONAL

Reading time : 12 minutes

“The whole notion of journalism being an institution whose fundamental purpose is to educate and inform and even, one might say, Elevate, has altered under commercial pressure, perhaps, into a different kind of purpose, which is to divert and distract and entertain”- Tom Stoppard

INTRODUCTION

The significance of media in a democratic country like India is well recognized.  Our system has 3 strong pillars- the legislative, the executive and the judiciary. Article 19(1) (a)[1] of the Indian Constitution which talks about freedom of speech and expression includes within its ambit, freedom of press and has given rise to the fourth pillar, media.  

Romesh Thappar v. State of Madras[2] was one of the earliest cases to be decided by the Supreme Court declaring freedom of press as a part of freedom of speech and expression. Patanjali Sastri, J. rightly observed that, “Freedom of Speech and of Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.”

The Hon’ble Supreme Court observed in Union of India v/s Association for Democratic Reforms[3], “One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.

In Indian Express Newspapers v/s Union of India[4], it was held that, the courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements. They are:-

1. Freedom of access to all sources of information,

2. Freedom of publication, and

3. Freedom of circulation.

According to the constitutional advisor, Dr. B.N. Rau, it was hardly necessary to provide for Freedom of the press specifically, because freedom of expression would include freedom of the press[5].  

The views of Dr Ambedkar and Dr B.N. Rau have been vindicated by the Supreme Court. In a series of decisions from 1950 onwards the Apex court has ruled that the freedom of press is implicit in the guarantee of freedom of speech and expression. Consequently freedom of press is one of the fundamental rights guaranteed by the Constitution of India.[6]   

Freedom of speech is not only a national but an international aspect of human rights. The United Nations’ 1948 Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and to seek, receive, and impart information and ideas through any media regardless of frontiers”[7].

MISINFORMATION AS A TOOL TO SUPPRESS FREE SPEECH

The problem of ‘fake news’ and ‘misinformation’ appears to be a substantial problem in India. However, unlike the other countries, where the focus is mostly on foreign based misinformation campaigns, India has more of a domestic misinformation problem involving major political parties and associated “cyber-army” groups. There is no specific provision in Indian law that specifically deals with fake news. However, there are several offenses in India’s Penal Code that criminalize certain forms of speech that may be relevant to fake news and may apply to online or social media content, including the crimes of sedition and promoting enmity between different groups[8]. There is deficient regulation of misinformation under Indian law. 

Due to the various types of fake news, their motivations, and the ways they are shared, the regulatory challenge is daunting. To combat fake news, the first imperative is to identify the different forms: ‘misinformation’ is the inadvertent sharing of false content, while ‘disinformation’ is deliberate sharing with intent to deceive.[9] The major problem that has evolved through misinformation is it’s affected on general public. Therefore there is an urgent need to combat the fake news and misinformation and check the consistency with international human rights standards.

INFODEMICS IN INDIA

The Supreme Court of India in Alakh Alok Srivastava v. Union of India[10] acknowledge the problem of infodemics in India and passed an order asking the State governments to comply with the directions issued by the Centre to curb the menace of fake news. The apex court further emphasized on the need to have a daily bulletin issued by the Government of India through all media avenues as a source of real time verified information regarding Covid-19 in a bid to counter the panic and apprehension caused by the uncontrolled flow of fake news and surrounding misinformation.[11]

Also read: Media Trials: Guilty Until Proven Innocent?

INDIAN PENAL CODE (IPC)

Section 505(1)(b) of the IPC deals with the spreading of false and mischievous content that result in fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or public tranquillity. The offender under this section can be punished with imprisonment of a maximum of 6 years and a fine. Section 505(1) (b) coupled with Section 54 of the DMA have been envisioned to contain the spread of fake news to a large extent.[12]

GOVERNMENT ACTION

Press Information Bureau of India Noticing the increasing instances of fake news in various mediums including print and electronic media,”[91] the Press Information Bureau of India amended the Guidelines for Accreditation of Journalists to provide for the suspension of a journalist’s accreditation for creating or propagating fake news.  However, the amendment was reportedly withdrawn soon after by the government because it “angered journalists and opposition politicians, who called it an attempt to gag the media in the run-up to national elections expected next year.”[13]

It is essential that fake news need to be curbed. However, it should not be at the expense of free speech. The way forward in cutting down free speech is temporary measures, which in the short run take away certain freedoms, but in the long run does not turn out to be a political weapon for any ruling government. Temporary measures will sanction the government to make changes to the existing system in order to protect us. In our vulnerable moment we should let the government protect us, but it should not result in the government exploiting our vulnerability. The government needs to work with the public and the intermediaries to control the spread of misinformation. It is vital that we do so, otherwise fake news might prove to be the pandemic’s equal.  

EXPLOITATION OF JOURNALISM

A free press is always critical to public and political involvement. Independent media brings the public information on the world around them and enables debate. However, in many countries’ journalists also face violent behaviour and legal harassment intended to silence them: to cover up protests, elections and reporting or voicing opinions on matters of public and political debate, journalists face increasing hostility around the world

As every coin has two sides similarly journalism has its both positive as well as negative consequences. On one side, it gives a space to express yourself but on the other side, it also creates space for people to respond violently to your thoughts.

Regardless, the Courts may attempt to rescue the press from unreasonable curtailments, there are multiple incidents of violence against journalists impede the freedom of the press. A study titled “Getting away with murder” reported that between 2014-19 there have been 198 serious attacks on journalists across India.[14]

In February 2020, a journalist reporting the violence in North East Delhi suffered severe bullet injuries while on duty. Another misfortunate incident was an attack on a female journalist with sticks and bricks while she was covering the riots in Delhi. There have been numerous instances of journalists being attacked by mobs while reporting religiously charged incidents, and being forced to prove their faith[15]

Protection of the media provides independent and neutral reporting, which guarantees transparency in a democracy. As a society, we must work towards creating an environment of shared respect for differing views. The co-existence of a pluralistic community can ensure freedom of the press to report without fear or favour.

MENACE OF MEDIA TRIAL FOR NATIONALISM

The concept of nationalism Nation and nationalism Weaknesses of nationalism Rise of religious nationalism towards authoritarianism. Long back, Rabindranath Tagore cautioned us that “nationalism is a great menace”. The time has come to ask the question whether we are living in a time when nationalism has actually become a great menace.[16] The freedom of media or freedom of press is implicit in the right to freedom of speech and expression under Art. 19 (1) (a) of the Indian constitution but the right is not absolute, it is subjected to reasonable restrictions enshrined under article 19 (2) of the Indian Constitution. Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India[17] has stated that in today’s free world freedom of press is the heart of social and political intercourse.

In Printers (Mysore) Ltd. v. CTO[18] the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy. The Freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution.[19] Thus, it can be said that Freedom of media or Freedom of press flows from Freedom of speech and expression but in recent years media trial has created menace in the society in the name of Nationalism. Lord Denning in his book “Road to Justice” observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehavior.[20] Day by day journalism has losing its essence in complete sense, Indian media behind the veil of nationalism trying to misguide the people of the Country.

Recently, Chief justice of India made a statement while entertaining the petition filed by the Jamiat-Ulema-I-Hind asking for action against the media for “spreading hatred” over the Tablighi meet at Markaz Nizamuddin that “Freedom of speech is one of the most abused freedoms in recent times,”[21] The Supreme Court has barred television channel Sudarshan News from telecasting a controversial programme on the entry of Muslims into the country’s civil services on the ground that the programme is “insidious’’ and is aimed at vilifying the Muslim community. Four episodes of the programme, called “Bindas Bol”, have been aired and the ban will apply to the remaining six episodes.[22]

Another recent action taken by the Bombay High Court with the Bench comprising of Justice S. S. Shinde & Justice Manish Pitale,[23] directed the media organizations to scrupulously follow the guidelines which the Court had laid down in the case of Nilesh Navlakha v. Union of India[24] [Sushant Singh Rajput case] and not to give any unnecessary publicity to the illicit relationship of the Woman. The Court in this case had laid down various guidelines for reporting on “sensitive criminal matters, including death by suicide, and had held that the media should avoid putting photographs of victims, depicting the deceased as a weak character, or try to reconstruct the incident while the investigation is underway”.

The division bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni had directed the print and electronic media to exercise restraint and refrain from publishing any news item, debate, discussion on interview while reporting on certain cases or at a particular stage of investigation.[25]

Also read: The Law of Contract and its role in Business Transactions

CONCLUSION

The Indian Constitution does not provide freedom for media independently. But there is an indirect provision for media freedom. It gets derived from Article 19(1) (a). This Article guarantees freedom of speech and expression which includes freedom of press.[26] Our Constitution also sets down some restrictions in the form of Article 19(2). It is highly inappropriate that there lies a deep-rooted aversion to conflicting views in our society. The beauty of a democracy is rooted in the co-existence of contrasting opinions. As a society, we must work towards constructing an environment of mutual respect for differing views. The co-existence of a pluralistic community can safeguard freedom of the press to report without fear or favour. Moreover, the freedom to express to one’s ideals and to hold an opinion is an important precondition for political process in a democratic society and it national level it is important for good government and to prosper in socio-economic process and as such without such broad guarantee of freedom of speech and expression there cannot be a free society and no democratic state.[27] However, Freedom of expression is a fundamental human right that must be upheld in democratic societies. Yet there is a worrying global trend of governments unjustifiably limiting freedom of speech, targeting journalists, protesters and other persons considered to be dissenting from government views. It is essential that civil societies as well as the individuals across the globe are vigilant in defending freedom of expression.

Thus, to conclude, Media protection takes a very pivotal position because of the special role such as to work as public watchdog as well as the assurance to disseminate the information to the public in general and it is a fact that Media is the main cornerstone for open and participatory democracy. In Democracy, the Government cannot function unless the people are well informed and free to participate in public issues by having the widest choice of alternative solutions of the problems that arise.  The people can, therefore, be given the full scope for thought and discussion on the public matter, if only the newspapers and electronic media are freely allowed to represent different points of views. Parameters of freedom of the press should be clearly earmarked. Information must be available at an affordable cost within specified, definite and reasonable time-limits. But Free press should not violate the right to privacy of an individual. Free press must be law enforcing and preventive of crime. Rule of law must be followed by the free press. Influence through free press upon the judiciary should not be exercised. Press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour. It shows that there are certain restrictions on the freedom of the press.

REFERENCES

[1] INDIA CONST. art 19(1)(a)

[2] AIR 1950 SC124

[3] (2002) 5 SCC 294

[4] 1985, 1 SCC 641

[5] B. Shiv Rao, The Framing of India’s Constitution: A Study, pp 219-206

[6] Brij Bhushan v State of Delhi; AIR 1950 SC129

[7] Universal Declaration of Human Rights, https://www.un.org/en/about-us/universal-declaration-of-human-rights

[8] Government Responses to Disinformation on Social Media Platforms: India,  https://www.loc.gov/law/help/social-media-disinformation/india.php

[9] Countering Disinformation and Hate Speech Online: Regulation and User Behavioural Change, https://www.orfonline.org/research/countering-disinformation-and-hate-speech-online/

[10] 2020 SCC Online SC 345

[11] Abraham Jacob and Alex Ashok Philip, The Curbing of Fake News: A pandemic Delimma, https://www.jurist.org/commentary/2020/05/abraham-alex-fake-news-infodemic/

[12] Supra 11

[13] Supra, 7

[14] DALVI VIDHI THAKERANDPRASTUT, Shooting the messenger: Restraint on Free Press in India, https://www.theleaflet.in/shooting-the-messenger-restraint-on-free-press-in-india/#

[15] ibid

[16] Nationalism, then and now, April 15, 2016, FRONTLINE, https://frontline.thehindu.com/the-nation/nationalism-then-and-now/article8409074.ece

[17] 1986 AIR 515, 1985 SCR (2) 287

[18] 1994 SCR (1) 682, 1994 SCC (2) 434

[19] R. Rajagopal v. State of T.N

[20] Lord Denning, Road To Justice, http://www.allahabadhighcourt.in/postcentenary/RoadOfJustice.html

[21] THE FEDERAL, Supreme Court on media reporting: ‘Freedom of speech most abused liberty’, 8th October 2020, https://thefederal.com/news/sc-freedom-of-speech/

[22] DECCAN HERALD, Sudarshan News case: Dangerous, shameful abuse of media freedom, 17th September 2020, https://www.deccanherald.com/opinion/first-edit/sudarshan-news-case-dangerous-shameful-abuse-of-media-freedom-888607.html

[23] Lahu Chandu Chavan v.The State of Maharashtra & Ors. [Writ Petition No. 1119 Of 2021]

[24] Nilesh Navlakha v. Union of India reported in Aironline 2021 Bom 14 [Sushant Singh Rajput case]

[25] Nilesh Navalakha and others v Union of India and others

[26] Romesh Thappar v. State of Madras, AIR 1950 SC 124

[27] Dr Archana & Dr Rahul Tripathi, Media Laws in India: Origin, Analysis and Relevance in Present Scenario Volume 7 Issue 02, pp 13-15, February. 2018

Author: AKRATI SRIVASTAVA

Editor: Kanishka Vaish, Senior Editor, LexLife India.

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