Critical Appraisal To The Existing Framework of Freedom of Speech and Expression In India
I. Important Development In The Field of Freedom of Speech And Expression
Many important developments have taken place so far in the field of freedom of speech and expression. For example- The Information and Broadcasting Ministry has recently relaxed the empanelment norms of the Directorate of Advertising and Visual Publicity which handles the advertisement activities for the government. As a result of that, a large number of regional news and general entertainment channels would get empanelled with the Directorate and would be given a greater share in the government’s annual advertisement pie.
As freedom of speech includes the right to reply, thus, an initiative has been taken by the Indian Express wherein it provides a column known as “@ Write Back”, in which an opportunity is afforded to individuals to publish their replies against any report pertaining to them. There is a need for a legal framework to check complaints and criticism against judges. The public cannot scrutinize each and every decision given by every Court, thus, an agency should be there to monitor this.
Another important development is The Judges (Inquiry) Bill, 2006 which seeks to establish a National Judicial Council. The proposed Council would investigate complaints by any person or upon receiving a reference from Parliament based on a motion. A major drawback of the proposed Bill is that the Council would consist solely of the members of the judiciary (CJI, two Supreme Court judges and two High Court Chief Justices). Thus, the dream of an independent monitoring agency seemed far-fetched.
In present Bill, there is attempt only on accountability wherein, too, a prolonged all-Judge affair renders it unfair. If a common man cannot chose the Court for his own trial then how Judges can be allowed to choose the forum of their own choice for their own scrutiny? Committee after committee, the Bill has made it extensively an all-Judge affair knowing well the fact that a Judge hardly ever punishes a Judge. The ghost of “impeachment” not only survives and exists but made more laborious, uncertain and expensive. There is not even a provision that errant Judge under inquiry will be placed under suspension and that after having found guilty will be compulsorily retired. Certain suggestions in this regard are welcome:
The “possibly injurious” scrutiny panel needs to be scrapped when investigation committee is there. Provision for suspension of Judge under inquiry is a must if dignity of jury and of the nation is to be maintained. Role of MPs be certainly excluded which can sabotage entire remedial exercise just by raising the hands for no justifiable ground. Impeachment provision should be by passed and deleted from the Bill. In the present form, the Bill deserves to be withdrawn for redrafting, accordingly.
Similarly, The Cinematograph Bill, 2010 has been lying in Parliament for quite some time now. It is a timely exercise and an extremely relevant one. With the Ministry of Information and Broadcasting seeking the participation of civil society and the general public in suggesting and incorporating changes in the Bill, it is hoped that the Bill and the subsequent amended Act shall serve to be an empowering piece of legislation that shall allow Indian film-makers to build upon the base of excellence that they have already created for themselves, and to experiment in newer and more thought-provoking types of cinema.
Further, there is a growing acceptance of the phenomenon of whistleblower. A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues). The whistleblower is considered a hero or a traitor, a do-gooder or a crank, a role model or a non-conformist troublemaker — depending on one’s point of view. Whistle blowing is a universal phenomenon. India has also had its share of prominent whistleblowers from V. P. Singh to Manoj Prabhakar to P. Dinakar.
It is true that under normal circumstances, an organisation is entitled to total loyalty and confidentiality from its employees. But when there is serious malpractice or when people’s lives are at stake — as in corruption and fraud in defence procurement; deaths in ‘encounter’ of innocent persons; toxic leaks from a chemical factory; non-adherence to flight safety standards by an airline; creative accounting and false declarations by a company; cheating and plagiarism in scientific research, for example — the overriding public interest may lie in protecting the public’s right to be told, and the whistleblower’s right not to be punished for doing so. Whistleblower protection in India refers to provisions put in place in order to protect someone who exposes alleged wrongdoing. The wrongdoing might take the form of fraud, corruption or mismanagement. Initially, India did not have a law to protect whistleblowers; however, the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 was approved by the Cabinet of India as part of a drive to eliminate corruption in the country’s bureaucracy.
As far as the issue of trial by media is concerned, recently the Supreme Court has begun to frame guidelines for reporting of cases in Media and it has taken up hearing in this matter before a Constitution Bench from March 27, 2012 onwards. In this case, an eminent senior counsel Fali S. Nariman appearing for Sahara India complained to the Apex Court Bench regarding telecast of a news on a leading business news channel concerning the above two parties. The channel allegedly aired the contents of a proposal sent by two real estate companies of the Sahara group through their counsel to Securities and Exchange Board of India (SEBI) although the same was at a very nascent or preliminary stage. The Court expressed its distress over increase of such unfortunate incidents where sub-judice matters are improperly (mis)reported in the media thus affecting both the business sentiments as well as interfering with the administration of justice.
Unfortunately, we have no system wherein judicial proceedings before a Court of law are duly video-recorded much less than live coverage of Court proceedings as is the practice in certain western countries like the U.S. If at least, there is an official recording of a day’s proceeding, it to present a day’s proceeding, it to present a clear and unambiguous picture of what actually transpired in the Court during a particular period and the instances of misreporting (not biased reporting) would be wiped out to a large extent. Noteworthy that the media has also received a pat from the higher judiciary where it has done a yeoman’s service in bringing the real ruth before the Court by way of sting operations or investigative journalism and thus facilitating in the conviction of real culprits. Having said that, as it is wisely said that there is always a room for improvement; hence suitable corrective measures are surely needed in cases where the media goes berserk either for sensationalism or other reasons. After all, the role of media is to “supplement” and not “supplant” an ongoing trial pending adjudication before an appropriate Court of justice.
The final verdict of the Court is awaited and, truly, it shall be a benchmark for everybody to follow. Till any specific legislation, these guidelines would be the law on this subject. The Hon’ble Chief Justice has also directed that any party, who desires to make submissions in the matter, may do so by way of intervention. Further, this information has been put on the website for the notice of everyone. As far as internet censorship is concerned, recently the Indian government asked the U.S. to ensure that India-specific objectionable content are removed from the social networking such as Face book, Google and YouTube. The government also wanted these service providers to set up servers in India to order to regulate the content locally. The government had previously also made attempts to get access to Yahoo and Gmail chatting/e-mails. However, such attempts by the government to regulate the internet often failed because of failure to fix liability, jurisdictional issues, clashes in public policies among different nations, anonymity on the web etc. For example, it is not easy to sue a foreign company with an address abroad in our Courts, similarly the issue of lack of jurisdiction of Indian Courts also arise when a suit is to be filed against a foreign website.
As far as the electronic media is concerned, the Indian Broadcasting Foundation (IBF) has adopted with suitable modifications the Ministry of Information Broadcasting Self Regulation Guidelines for Broadcasting Sector draft version of 2008, which has been formulated after a comprehensive consultative process by over 40 stakeholders from across the overnment, civil society, NGO’s, Industry. These Self Regulation Guidelines (Guidelines), Content Code & certification rules sets out principles, guidelines and ethical practices, which shall guide the Broadcasting Service Provider (BSP) in offering their programming services in India so as to conform to the Programme Code prescribed under the Cable Television Networks (Regulations) Act, 1995, irrespective of the medium/platform used for broadcasting of the programme. These Guidelines have been drafted to introduce greater specificity and detail with a view to facilitate self regulation by the broadcasting industry and minimize scope for subjective decision by regulatory authorities or the broadcasting service providers. The basic underlying principle of these Guidelines is that the responsibility of complying with the provisions of the Certification Rules vests with the BSP. The principles in these Guidelines are sought to be implemented at the first instance through a self-regulatory mechanism of the BSP. Regulation by “forbearance”, as present in the telecommunications industry, shall guide the Broadcasting Content Complaints Council (BCCC) whilst enforcing adherence by the BSP, with the guidelines. Such self-regulatory mechanism shall be subject to a credible and time bound default/ grievance redressal mechanism, which shall function under the guidance of the BCCC.
The BCCC, a self regulatory mechanism of the broadcasting industry claimed to have received 3,441 complaints in six months since its inception in June 2011, with maximum against a Rakhi Sawant hosted programme and appearance of porn star Sunny Leone in reality show ‘Big Boss’ and that it had disposed of a majority of the complaints.
It is submitted that as far as television censorship is concerned, some concrete steps need to be taken. As uniform guidelines cannot be formulated for every channel, a system should be evolved where viewership segments are segregated. Additionally, the public should be made aware as to what kind of programming could be expected on each channel. Of course, some information must be provided with regard to what would be suitable for children etc. A rating system could be very beneficial. Moreover, there should be a strictly prescribed time slot for more adult programming.
The existing system is not free from lacunas and the researcher has identified the following problem areas which need to be tackled for the smooth functioning of our democratic framework.
II. No Provision Dealing With Protection of Individual Privacy
Privacy is that sphere of the life of an individual into which the Government cannot interfere. It may at times be a pure right i.e. the right literally to be left alone in the confines of one’s house, so long as no unlawful activity is carried out. It may also be the right to an unhindered exercise of some or the other constitutional right, so long as the right is exercised in a private or personal arena. It is a protection of the basic inviolable nature of the human personality.
In the Indian context, it embodies a freedom from unwarranted, arbitrary and unnecessary surveillance, search and seizure. It signifies the power to decide what kind of personal information may be disclosed, and the choice of whom the disclosure may be made to. It is a safeguard of the exercise of choice in matters fundamental to our existence. It is not merely an informational right, but a truly substantive right. However, there is no specific legislation in India that affords to an individual protection of his individual privacy.
The exponential growth of the media, particularly the electronic media in recent years, has brought into focus issues of privacy. The media has made it possible to bring the private life of an individual into the public domain, exposing him to the risk of an invasion of his space and his privacy. At a time when information was not so easily accessible to the public, the risk of such an invasion was relatively remote. In India, newspapers were, for many years, the primary source of information to the public. Even then, newspapers had a relatively limited impact given that the vast majority of the population was illiterate. This has changed today with a growth in public consciousness, a rise in literacy and perhaps most importantly, an explosion of visual and electronic media which have facilitated an unprecedented information revolution.
This is not a hidden fact that media reporting often results in the invasion of individual privacy. In an age of revolutionized communications and aggressive voyeurism, the individual’s privacy is under siege. But the law makers in India have shown scarce concern on the issue. While in many other countries, there are now a variety of statutes in place that seeks to protect these rights, Indian laws on the subject lag far behind. The Indian Supreme Court has already made much headway in giving constitutional protection to privacy by including it within the penumbra of personal liberty as guaranteed by Article 21 and by inserting the wedge of judicial review to test the reasonableness of penal laws authorized by Article 21. Of course, this aspect of privacy concerns an individual’s relation with the State but not with the media.
Investigative journalism is based on recognition of right to know. The ‘Age of Information’ is a ground reality today and a lot of power rises with the electronic media. Issues like pornography and sleaze, and the ‘right to air’ have emerged. In this context it is useful to recall that a number of thinkers have cautioned against over-use of the right to know. Mahatma Gandhi discouraged the publishing of too many books since quality could not be ensured. Granting that the right to know may provide an appropriate framework, yet rights adhere in an ethical groundwork which has never been sufficiently recognized. As there are limits to the right to expression, so also there should be limits to the right to know. At present, public institutions can continuously collect information for the surveillance and control of individuals. The right to privacy is infringed upon. In this context, should the right to know take precedence over the Right to Secrecy? Constitutional safeguards already exist for this. But the problem is one of ethics and rational cooperation, which are not seen much today and in the absence of which no solution is possible.
III. No Specific Definition of “Decency or Morality”
The terms ‘morality’ and ‘decency’ come with their own baggage of value-laden subjectivity and as such hold the potential to be the harbingers of denial of right to freedom of speech and expression on the basis of transitory sentiments.
The Constitution permits the enactment of laws in the interest of morality and decency, but the present laws fail to achieve this objective, because they are uncertain, frequently oppressive and are prone to curb the legitimate expression of literary, artistic and cultural ideas. The various laws and codes aimed at censoring pornography are most unsatisfactory. The laws are mostly administered by executive officers who are not familiar with literary and aesthetic values, and are not aware of modern trends in creative art, and the psychological impact of erotic matter on the majority of people.
From time and again, starting from the Hicklin test to the preponderating social purpose test, the Apex Court has devised a number of tests to judge whether a work is obscene or not. There is so much that is vague, uncertain and undefined that it is impossible to the objective about what is to be declared obscene and what should be held unobjectionable. An even greater flaw in the law is that the evidence of experts cannot be admitted to support the defence of public good. Therefore, all that an accused person can say in his defence is that the material he has published was good literature or good science, and it is left to the judge, who may know very little of literature or science, to come to the conclusion whether the defence plea is good or not.
Undoubtedly, there are several legislations which put a check on the obscene element in speech. There are laws which embody restrictions on the right to free speech in the interest of decency and morality.
However, on a closer look, some loopholes appear to the forefront. For example- there is no definite and clear definition of ‘obscenity’ in law and it is required that the legislature must remove this anomaly by giving a proper definition of ‘obscenity’. Secondly, in no legislations has anywhere the men or women been categorized as the perpetrators of such offences and hence no punishments prescribed. Further, the exceptions of law of indecent representation permit such a depiction on good faith, however, good faith, again has not been defined in any statute. Thus, many such anomalies make their presence and they need to be attended by proper solutions. For example- the terms like ‘decency’ and ‘morality’ can be given a wide connotation in the interest of the society. Similarly, any indecent representation, if permitted for advancing the cause of art, literature, science etc., must be looked at and interpreted by the judiciary very strictly. Moreover, a National level Regulatory body is the requirement of the day which shall oversee the public and private broadcasting of issues in order to sieve from them what is indecent, and present before the public, a decent expression of one’s freedom of speech. Finally, the media fraternity is itself required to take a serious look of the issue and do self- regulation and self monitoring with extreme care and caution. The system of reward and punishment may be introduced by way of policies by The Press Council of India whereby reward may be given to those who are able to portray women in a decent manner; and likewise, punitive action may be taken against those who defy the norm.
Derived from Article 19 (2), constitutional morality is as a concept, very different from traditional societal notions of morality or decency, which as public perceptions are ever-changing and should not be held as the index for imposing restrictions on the rights given by Article 19 (1)(a).It is also to be pointed out that the phrase “decency or morality” has been, generally, interpreted in terms of the phrase “obscenity”, whereas there may be certain expressions which have nothing to do with inculcating prurient interests; nevertheless, they need to be prevented in the interest of “decency or morality”. For example, subtle expressions preaching falsehoods, corruption, disregard for marginalized Sections etc. Further, the latest version of obscenity is hard core pornography and no provision covers the phrase and the problem gets aggravated in the internet age. Thus, immediate steps are needed to tackle this issue.
IV. Too Broad A Definition of Official Secrets
It is pitiable that certain Secrecy laws are still continuing in the age of Right to Information. It is a reality that punitive processes are sometimes unleashed even against truthful publications including privacy of official secrets, defamation of persons, spreading of disharmony or violation of censorship laws plus more severe penalties under penal laws relating to national security, breach of privileges of the Legislature, contempt of the Court and the like. Apart from the statutory secrecy provisions, the state has other tactics to thwart the free flow information by gagging the press and also by supplying false or half-true information through its electronic media i.e. Doordarshan and Akashvani. The state power attempts to gag the press by putting economic pressure and professional interference and thereby obstruct the free flow of information.
The citizens have a right to know but the government sometimes wishes to be secretive. The object of Right to Information, 2005 is to balance people’s right to know and interests of Government to preserve the confidentiality of sensitive information. However, what information is “sensitive” is the prerogative of the government to decide. While commenting on the Official Secrets Act, 1923, Ms. Rani Advani had once said that “in its application and interpretation the executive and judiciary have allowed the interest of the State to be read as the interest of theGovernment currently in power”. Thus, the phrases like official secrets, sensitive information etc. give considerable room to the government to be secretive under the garb of protecting the national interest. What constitute ‘public interest disclosures’ need to be clearly defined. The legal protection should apply to specific disclosures only involving an illegality, criminality, and breach of regulatory law, miscarriage of justice, danger to public health or safety and damage to environment, including attempts to cover up such malpractices. It is submitted that this issue needs to be addressed at all levels at the earliest so that “gagging orders” by the government or even by the Courts do not become a rule but an exception for truthful publications in public interest.
The fifth pay Commission in its report in 1997 advocated amendment in Official Secrets Act to ensure transparency in Government functioning. The United Front government constituted a committee to look into the atter and give necessary recommendations. However, nothing concrete came out of it. There is lack of will power coming in the way of concrete action. Analysts believe that the government must not delay repealing Official Secrets Act particularly when there is right to information available now.
Recently there was a report in the Indian Express Newspaper wherein it was published that two military units began moving towards Delhi without notifying to the government of India raised a considerable alarm at highest levels in government and highlighted issues about top level politico-military relation. The entire establishment tried to keep this report under wraps; nevertheless, the same got published. The army called it a routine fog time exercise but so many questions revolved around the movement. Given the sensitive nature of the news, the vital question that arose was whether the alleged leak of the report and its subsequent publication is covered within the free speech protection or should it have been restricted on the grounds of security of state? Further, should media have exercised some restraint while reporting the news?
In this regard, a public interest litigation was filed by a social activist and a freelance journalist Nutan Thakur seeking a direction to the Prime Minister’s Office to conduct an inquiry to ascertain the veracity of the report and if the report was false, action should be taken against those responsible for the publication of a false report on a sensitive matter dealing with national security. The Indian Express Newspaper, on the other hand, in a statement said that it stands by the report.
The Allahabad High Court noted that the petitioner had expressed grave concern that reporting on the subject, “if permitted to continue may seriously interfere with the handling of security matters by the army, particularly the movement of troops from the strategic point of view in the field as well as peace areas”. As a result, the High Court passed an order banning the reporting of any “news item by the print as well as electronic media” regarding the movement of army troops. The Court held that this is “not a matter of the kind which should require public discussion at the cost of defence, official secrecy and the security of the country”. The Court, however, dismissed the Public interest litigation saying that it was issuing directions “without interfering with the independence of media and keeping in view the fact that the news items relating to movement of troops has already engaged attention at the highest level in the defence as well as government”.
As a result, the Ministry of Information and Broadcasting issued an advisory to all private satellite TV Channels to “strictly follow” the High Court’s order. However, the Press Council of India Chairman Justice Markandey Katju said that the Council would challenge the High Court’s gag order in the Supreme Court holding that:
With respect to the High Court, I am of the opinion that the orders of the High Court are not correct. The media has a fundamental right under Article 19(1)(a) of the Constitution to make such publications, as it did not endanger national security. I may add that the Indian army is not a colonial army, but the army of the Indian people who pay the taxes for the entire defence budget. Hence, the people of India have a right to know about army affairs, except where that may compromise national security. The media did an excellent job in exposing the Adarsh and Sukhna scams in which senior army officers were involved, and they were well within their right under Article 19(1)(a) to do so. The PCI is a statutory body set up to preserve the freedom of press and for maintaining and improving the standard of newspapers and news agencies.
Justice Katju defended the Indian Express Newspaper saying that the newspaper is a responsible one which took eleven weeks to complete the investigation of the reported troop investigation before deciding to publish the report. Thus, he rejected the blanket ban on reporting troop movement citing national security and observed:
I am of the opinion that reporting troop movements near the Indian border or during war time should be prohibited as that may aid the enemy and cause harm to our armed forces by compromising national security. However, there can be no general prohibition of reporting of all troop movements.
It is submitted that the prohibition by the High Court was in the nature of a “gag order” and the prohibition order was warranted only “by going into the question whether the news reporting was factually correct or not”.30
V. Media’s Interference With The Administration of Justice
The tension between the Courts and the media revolves around two general concerns. The first isthat there should be no ‘trial by media’; and the second is that it is not for the press or anyone else to ‘prejudge’ a case. Justice demands that people should be tried by Courts of law and not be pilloried by the press.
The power and reach of the media, both print as well as electronic is tremendous. It has to be exercised in the interest of the public good. A free press is one of very important pillar on which the foundation of Rule of Law and democracy rests. At the same time, it is also necessary that freedom must be exercised with utmost responsibility. It must not be abused. It should not be treated as a licence to denigrate other institutions. Sensationalism is not unknown. Any attempt to make news out of nothing just for the sake of sensationalisation has to be deprecated. When there is temptation to sensationalize particularly at the expense of those institutions or persons who from the nature of the office cannot reply, such temptation has to be resisted and if not it would be the task of the law to give clear guidance as to what is and what is not permitted.
The judgments of Courts are public documents and can be commented upon, analyzed and criticized, but it has to be in dignified manner without attributing motives. Before placing before public, whether on print or electronic media, all concerned have to see whether any such criticism has crossed the limits as aforesaid and if it has, then resist every temptation to make it public. In every case, it would be no answer to plead that publication, publisher, editor or other concerned did not know or it was done in haste. Some mechanism may have to be devised to check the publication which has the tendency to undermine the institution of judiciary.
It is imperative that Courts bear in mind that even judicial injunctions ought not to breach constitutional guarantees. There is a public interest in the dissemination of information. Information and opinions, however improbable they sound, are entitled to be published. In cases where the subject matter of publication deals with issues of governance, corruption, maladministration or issues of misconduct, a judicial gag order ought never to be granted. Except in the rarest of rare cases, judicial “gag orders are as abhorrent as executive restraints on the media”.
However, there is another viewpoint also to it according to which neither does media reporting influences judges nor does it lead to miscarriage of justice. Admittedly, the media has the right to be present and report Court proceedings, which presumably is based on the media’s role as a conveyor of information. It is no secret that the content presented to the public is often inextricably laced with opinions, bias and subjective notions of justice. Every effort should, therefore, be made by media to maintain the distinction between trial by media and information media.
VI. Lack of Control on The Objectionable Contents on The Internet
Internet communications cross national territorial boundaries. Their global character is one of their principal characteristics, so much so that, in the view of some commentators, effective regulation by state authorities is impossible. Moreover, it is arguably undesirable to attempt it. Website operators and ISPs might not know which legal systems they will become subject to. As a result they might be prosecuted under the obscenity or hate speech laws of, say, France or Germany, for communications intended for computer users in the United States or England. Communicators in cyberspace, it has been argued, would have to be aware of the libel laws in every country from Afghanistan to Zimbabwe, if the Courts in any state where a defamatory message was accessible could claim jurisdiction and apply its law. Attempts by one jurisdiction to regulate communication on the Net would inevitably chill the exercise of free speech rights in others, particularly in the United States where speech is very strongly protected.Conflicts may occur, arising from the inconsistency between the decision of a Court in one country regulating speech on the Net and that of a Court in another state refusing to enforce that judgment.
When the Constitution of India was written, the outer space was safe and secure because highly sophisticated equipments were not invented to encroach upon the culture of our country. High-tech communication satellites in the outer space have invaded most of our homes. Everyone knows that pornography is made available at a very cheap rate. Nudity, sex, vulgarity and violence have gone abnormal, extreme and beyond imagination. As a result, eve-teasing rape, house-breaking, pick-pocketing, stabbing, killing and mass-massacre have become a part of daily news in our country. The viewers are increasing and there is no possibility of their return. They print everything they wish to poison our minds. Enemy countries vomit out poisonous propaganda through their satellite channels. Our country is at a gross disadvantage because we do not have any provision of law to stop them doing wrong, notorious, nefarious, illegal and anti-national activities. This cannot be tolerated under the name of any international treaty or universal brotherhood or humanity.
To add to the problem, the identity of bloggers or persons posting comments on the internet is protected, some people feel free to abuse, attack, defame, hate, hurt and harm others without fear of being held accountable.
The question arises is this the purported “free speech” which Google is protecting?
Recently, a meeting of the officials from Google, Microsoft, Face book and Yahoo was held with the Telecom Minister Mr. Kapil Sibal wherein, Mr. Sibal asked these internet companies to screen from the web some derogatory, defamatory and inflammatory content about religious figures and Indian leaders such as Prime Minister Manmohan Singh and Congress President Sonia Gandhi. However, the executives showed their inability to control the user generated content coming from India. The internet companies argued that given the volume of user-generated content coming forming the people, they cannot be held responsible for determiningwhat is and isn’t defamatory as disparaging Nevertheless, they assured the minister of looking into any specific complaint which may be brought to their notice.
It is submitted that our country should take a lead as the developing country and find out a proper forum where the objectionable matters are heard. Otherwise what will happen to the coming generation who do not respect moral, ethical, cultural, social and human values? That is why there is a dire need to amend the Constitution abolishing the distinction of inner space jurisdiction and outer space jurisdiction.
VII. Government’s Unwarranted Control over The Media
Control of the media by government does not make any sense in times when we have been overwhelmed by satellite television and the information revolution. The internet brings all the newspapers of the world to our personal computer. The information monopoly of the State violates the basics of the open society to which many of the developing countries seem to be attuned with. The right to know actually becomes real for the citizens when the media informs the public about what the government is doing. People now look to satellite channels for information and entertainment and conveniently sidetrack the state-run electronic media, which manipulates the news and views to a great extent. Our press lacks maturity and needs training. Simultaneously we need to work on the media ethics. Guidelines for journalists should be developed and published, even circulated to the government and non-government organizations. Right to know is too important to be entrusted to the media alone. The media must rise above the personal interest and must cater to the larger national interest. Recently, on the occasion of the launch of Kashmir Tribune, the Jammu and Kashmir Governor Mr. N.N. Vohra observed:
The role of media has increased manifold over the years and the impact of media reports has acquired enhanced significance. It is a responsibility of media to maintain visible impartiality through unbiased reporting. The media impacts governance, society and the course of events. An objective and a balanced media coverage of varied important issues relating to socio-economic development, governance and democracy would make an important contribution in protecting and enlarging the public interest. An excessive zeal to praise or blame cannot be the basis of good reporting.
On the same occasion, the Jammu and Kashmir Chief Minister Mr. Omar Abdullah opined:
If there is too much harmony between the media and the politicians than either we are not doing our job or you aren’t doing your job or perhaps both of us aren’t doing what is expected of us. Competition is good in government, in the private sector and even in the media and I hope that it will allow an honest reportage. I have always believed that critical coverage is in fact far more beneficial than coverage that is based purely on praise. My aversion comes to not critical coverage but unnecessarily or unfairly critical coverage.
However, it is also true that the Government, sometimes, has to adopt the tool of censorship to control expression which is against good taste and causes annoyance. An example is the very recent announcement by the Union Human Resource Development Minister Kapil Sibal of removal of a cartoon made back in 1949 by legendary political cartoonist K. Shankar Pillai from an NCERT Book, “Indian Constitution at Work”. The cartoon showed Ambedkar sitting on a snail with the word “Constitution” written on it, holding a whip. Behind the snail stood Jawaharlal Nehru, apparently trying to goad the snail on. The cartoon was meant to be comment on the slow pace of the framing of the Constitution. The cartoon created uproar in the Parliament and was termed “insulting” to Dr. Bhimrao Ambedkar. As a result, the minister assured the members that the cartoon shall be removed from the NCERT textbooks. A similar incident happened also during the days of Emergency when the famous cartoonist Abu Abraham made a cartoon depicting the censorship regime of Indira Gandhi and the same was banned by the Indira Gandhi government.
All of over 50 cartoons liberally sprinkled through the pages of political science and social science textbooks for classes IX to XII that have invited the ire of Parliament target politicians, in particular former prime ministers Jawaharlal Nehru and Indira Gandhi. Politicians are the subject of satire over pleading for votes to ticket distribution to relatives, the possible criminal-politician nexus to walkouts in Parliament, being evicted from the House by the Speaker and toppling of State Governments, to haggling over a particular portfolio and supporting and opposing Bills and so on. As many as 13 cartoons, the sharpest in the book target Indira Gandhi. They show her presiding over and overpowering an emaciated Cabinet, depict the Emergency, her picking state chief ministers of her choice and crowning Sheikh Abdullah J&K chief minister, her pushing V.V. Giri as president, and make a note of her literally sweeping polls post the Janta Party rule, her discomfiture just before Emergency as well as her tiffs with the Syndicate.
The 14 cartoons on Nehru make a reference to the China war, which was a big blow to the former PM, the tiny opposition he faced, as well as the issue of states’ reorganisation. Compared to the cartoons on Indira Gandhi, these are more good-natured. There are at least two-three cartoons on Prime Minister Manmohan Singh, his steering of the new economic policy along with Narsimha Rao, on the dialogue with former Pakistan president Pervez Musharraf, the policy on East-Asian nations and so on. Former PM Atal Behari Vajpayee, L.K. Advani, Jagjivan Ram, Charan Singh, Sardar Vallabhbhai Patel, Morarji Desai, Lal Bahadur Shastri, V.P. Singh, M. Karunanidhi and Rajiv Gandhi also find space amongst cartoons.
Following MP’s objections to political cartoons in the NCERT textbooks of social science and political science, the government set up a committee in May, 2012 headed by ICSSR Chairman, S.K. Thorat. The Committee finally recommended the deletion of 21 cartoons and replacement of around 22 captions/notes. Further, it suggested several modifications to be made in the text of the books from next year. E.g. it proposed that the word “Dalit” should be replaced with “SC”, and “apartheid” with “untouchability” or “caste discrimination”. The Committee noted that while cartoons are meant to provide visual relief and to improve teaching and learning, sensitivity with respect to various groups, too, has to be taken into account.
However, it is submitted that there should be some rigorous researchbased method to guide the decision-making process, as opposed to rejecting cartoons on the anaemic grounds of “political sensitivity” and “ambiguity”. Then the discussion can turn away from narrow considerations of personal interests and sensitivities, and towards a rational debate that can serve as a vivid example of politics at its best.
The censorship regime in India, besides being state controlled is also, many a times, influenced by social pressure. Though laws are there to govern and guide those in charge of executing the legal censorship, but once the masses resort to protests, attacks, verbal and physical, on those making the expression then the rule of law gives up. Often, either the State buckles to public pressure to impose some sort of ban on the expression, or those making the expression themselves step down. In rare circumstances, the expression is allowed to prevail. Thus, in this area of extra-legal censorship, strict policies and regulations are required, so that censorship is governed by reason and not by popular sentiments.
VIII. Lack of Codification of Parliamentary Privilege
The very concept of Parliamentary and legislative privilege is outdated in an age of information and accountability. The public’s right to full knowledge about the performance of their elected representatives in Parliament or in the assemblies is a matter of larger public interest and must override unwarranted privileges and immunities. Unfettered immunity yields opacity, not transparency, and is, therefore, clearly anathema to the spirit of a modern democracy.
The authors of the Constitution intended that Parliament would define its privileges. This is clear from the words of Article 105(3). It is time that privileges are precisely defined and limited to the minimum that is necessary for protecting free debate in the House. There is a need for codification of the privileges of the members of Parliament and legislators and appropriate amendments to the Official Secrets Act to enable the press to function properly and effectively.
IX. Unfair And Unethical Media Behaviour
With a view to create sensationalism in the era of TRP’S, the media often indulges in unethical behaviour, sometimes crossing the limits of decency. There is no dearth of data to suggest that these kinds of reporting generate a lot of revenue for the media. Be it circulation figures for the papers or TRP ratings for the TV channels, all of them take a hike. The centrality of the issue is often lost in the way the media sometimes treats certain incidents. There is no law which can compel a media outlet to give full and fair information or prevent suppression, varnishing, garbling and distortion of facts, or motivated reportage or mixing comments with facts. Only journalistic ethics may be invoked against such misconduct. However, there is another side to it also. Freedom of the press stems from the right of the public, in a democracy, to be informed on the issues of the day, which affect the public.
However, the impact of media is not always positive especially on young minds. In a programme on Star Plus “Satyamev Jayate”, the host Aamir Khan teaches the children how to protect themselves against sexual abuse. Same day, Sony premieres the Kareena Kapoor-Imran Khan starrer “Ekk Main Aur Ekk Tu”. Without any warning from the censor bosses or the TV channel, one watches in a party scene at the film’s beginning, a matronly lady touch Imran’s derriere in the most improper manner, while winking lewdly. Surfing channels, one finds Zee TV’s reality show Dance India Dance, featuring child artistes. A five-year old girl shakes her hips, spreads her arms to do belly dance while shaking something that was absent in the anatomy of a child of her age, and winks suggestively. The important question that arises is what kinds of values is a child inheriting from the popular media?
Very recently, a cartoon of a famous Italian football striker Mario Balotelly published in the Italian daily newspaper Gazzetta dello sport received a lot of criticism from the readers. The cartoon of the black Italy striker portrayed him as King Kong on top of London’s Bigben swatting away footballs, showing the striker who had conquered England in the quarter final football match of Euro Cup 2012. The incident raised a lot of hue and cry in Europe as it was considered a racist comment on the Italian player. However, the newspaper later published an apology for the same.
It is submitted that once the damage is already done, whether publishing an apology can undo the harm. Further, is there any mechanism hereby the media could be prevented from committing such a blunder rather than taking a corrective measure later on? Thus, the regulatory framework on the media needs to be evaluated. There is definitely a need of self regulation in the media, besides framing the code of ethics to be observed by it. Moreover, failure to observe the code should result in penal sanctions.
Recently in India, the Maharashtra Home Minister R.R.Patil took cognizance of media coverage of rave parties busted by the police. It was alleged that police officials themselves tip off the media before conducting such raids, and often people not involved in such parties are also filmed as they happen to be in the vicinity. The sensationalising of such events has triggered fear in the minds of the general public and the Home Minister assured that guidelines would be issued to the media regarding reporting about such events.
The media industry has established tribunals that affect to regulate media ethics through adjudicating complaints by members of the public who claim to have been unfairly treated by journalists and editors. Complaints about newspapers and journals may be made to the Press Complaints Commission, a private body funded by newspaper proprietors. The Press Complaints Commission has formulated a Code of Practice to be followed by the press. It has no legal powers, but its adjudications will be published by the paper complained against, albeit usually in small print and without prominence. The Press Complaints Commission has been regarded as public relations operation, funded by media industries to give the impression to Parliament that the media organizations can really put their houses in ethical order without the need for legislation. Similarly the National Union of Journalists has a code for its members, which they are all expected to follow. However, the code is seldom enforced.
Movies today seem to explore explicit themes of sex and violence unabashedly, and not surprisingly, attract an audience too. But how these are advertised in the public space needs to be examined. Gun holding and scruffy hooliganism have become sexy, cool and commonplace in our movies. And randomly shooting at people is seen as fun. It is, undoubtedly, true that one can decide on not watching or taking one’s children to watch such movies. But when newspapers, traditionally seen as family reading give pride of place to such ads and posters, it makes it much harder to explain why being rowdy and using guns is not right.
The trend of media houses reporting murders, rapes and burglaries accompanied by graphic descriptions that outshadow much of the other news. An unfamiliar reader might even believe that we are a nation of bad governance punctuated by perverted and violent actions. And one shudders to think what children who read these newspapers might be thinking. It is, no doubt, difficult to raise one’s children totally sheltered from the negative influences of the world; but to be forced into believing that violence is a natural way of life is undesirable and wrong.
The film industry and media need to review this with more responsible intentions. Sensational headlines that insinuate excessive sex and violence are irresponsible attempts to garner readership or viewership, and influence impressionable minds. Surely, there is a lucrative market for such content. But there must be a way so as not to bring it so openly into the public sphere and to stop glorifying it. Should media too start getting ratings of A, U/A and U? Or can we introduce some regulations for how headlines and movie posters and advertisements appear in newspapers? The Indian Broadcasting federation has made a positive attempt to address public opinion on the objectionable content. Can the print media dare to follow a self-regulated code of ethics?
The integrity of electronic media was questioned very recently when a Pakistan’s TV Channel “Dunya” telecasted a two hour interview of a real estate tycoon Malik Riaz Hussain who, on an earlier occasion, had alleged having paid to Chief Justice Iftikhar Chaudhary’s son Arsalan Iftikhar, Rs. 342.5 million to influence cases in the Supreme Court. A two-judge bench of Pakistan Supreme Court had asked the Attorney General to take strict action under the law against the Chief Justice’s son, the tycoon and his sonin- law. Meanwhile, an interview was aired between Hussain and two top TV anchors Mubashir Lucman and Meher Bukhari regarding this episode. However, the said interview was trapped in a controversy when certain videos got leaked and emerged on YouTube and other social media, appearing to have been shot during advertisement breaks in the interview. The videos showed the TV anchors discussing questions and rehearsing answers with Hussain. The anchors were seen coaching Hussain, so much so that the videos gave the impression that the entire video with Hussain, who is known to be close to political parties and security establishment was scripted. There had also been rumours regarding Hussain paying off several top TV anchors for years to ensure positive coverage for himself. All this episode has, infact, raised serious issues regarding lack of accountability in the electronic media.
Reacting sharply to the aforementioned incident, the full Court of 16 judges of the Pakistan Supreme Court formed a two-member committee to investigate the controversial off-air clips during a two-hour interview with Riaz aired by a private television apparently designed to further malign the Chief Justice and the Court. The controversial clips brought to the surface inner rivalries of media men and barons and indicated that the interview was a fix in which Riaz was found feeding anti-Chief Justice questions to two anchors and receiving calls from the management and government figures prompting the anchors. The registrar of the Apex Court said the intention of the programme was to defame the judiciary as planted questions were asked from Riaz in the interview. The Apex Court directed Pakistan Electronic Media Regulatory Authority (PEMRA) to present a complete report on the issue to the Supreme Court’s Registrar.
Again, one Pakistani channel Ary Digital TV incurred a lot of criticism from the public for showing live on the television the conversion ceremony of a Pakistani Hindu to Islam. The incident raised questions about media ethics as allegations were casted on the channel for showing such a live coverage of an individual’s personal matter for TRP’s. The Lahore Hindu Sabha felt hurt because of the telecast and alleged that such an incident has created a lot of pressure on it. It was argued that religious conversion is a very personal matter and the electronic media should refrain from the telecast of such like incidents.
Another recent incident involving the sexual assault of a woman on the streets of Assam Capital brought into focus NewsLive, an Assamese television channel, for the role it played in reporting the said incident. In fact, there were allegations that one of its reporters orchestrated the molestation. As a result, the reporter and the editor-in-chief resigned from their posts. The whole incident raised a lot of questions regarding media ethics, sensationalizing of trivial incidents, dichotomy between print and electronic media etc. The Assam channels beamed graphic images of the slaughter, assault and stripping and the question was whether such incidents really need to be shown in such graphic detail? Further, who is to take responsibility for the mental trauma suffered by the victim whose images were shown, time and again, on the channels? And, how is it always the camera crew that gets the news in open public spaces and not the police?
It is further submitted that while reporting any incident of national importance, nobody can hijack the spirit of national interest under the guise of news, interview or opinion through the media. The Cable Television Network Act should be modified for public good. The government must have powers at first-hand to stop any type of anti-Indian propaganda with beautiful and misleading coverage.
In recent years, corruption in the Indian media has gone way beyond the corruption of individual journalists and specific media organizations, from planting information and views in lieu of favours received in cash or kind, to more institutionalized and organized forms of corruption wherein newspapers and television channels receive funds for publishing or Broadcastting information in favour of particular individuals, corporate entities, representatives of political parties and candidates contesting election, that is sought to be disguised as “news”.
Such like incidents raise concerns about how media is flouting ethics in the race of becoming big power houses. Thus, there is a need to ensure that the right of freedom of media is exercised responsibly. It is for media itself and other concerned to consider as how to achieve it.
X. Lack of An Effective Media Policy
The increasingly complex and elusive media landscape has thrown fresh challenges to an unsettled ecosystem of media policy in India. Advanced communications technologies have fundamentally altered the ways in which information and meanings are delivered, organized and received. These new advancements call into question the efficacy of existing policy approaches to media, including the still-dominant conventional media. The multiple bills introduced in the last decade reveal a fragmented framework shaped as much by the Indian state’s staggered acquiescence to corporate interests as by the entrenched colonial structures of governance aimed at “reining in” the media, or using the technologies for targeted surveillance. Regulatory authority is currently divided between several government departments, even as the Communication Convergence Bill (2001) and Broadcasting Service Regulation Bill (2007) are still far from realizing their stated objective of introducing a comprehensive and coherent policy framework. It is thus one of the most crucial moments for media policy discussions to funnel their energy towards a meaningful debate, since the unsettled character of today’s advanced communication systems is not our burden; it is our chance to act.
The Press Council of India (PCI) Chairman Markandey Katju, very strongly argues that an independent body is needed to monitor Indian media, because self-regulation bodies (like the News Broadcasters Association and Indian Broadcasting Foundation) don’t work. Media people often talk of self-regulation. But media houses are owned by businessmen who want profit. There is nothing wrong in making profits, but this must be coupled with social responsibilities. The way much of the media has been behaving is often irresponsible, reckless and callous. Yellow journalism, cheap sensationalism, highlighting frivolous issues (like lives of film stars and cricketers) and superstitions and damaging people and reputations, while neglecting or underplaying serious socio-economic issues like massive poverty, unemployment, malnourishment, farmers’ suicides, health care, education, dowry deaths, female foeticide, etc., are hallmarks of much of the media today. Astrology, cricket (the opium of the Indian masses), babas befooling the public, etc., are a common sight on Television channels. Therefore, Katju suggests:
If the electronic media also comes under the Press Council (which can be renamed the Media Council), representatives of the electronic media will also be on this body, which will be totally democratic.
He further, observed that if the broadcast media claims selfregulation, then on the same logic everyone should be allowed selfregulation. Why then have laws at all, why have a law against theft, rape or murder? Why not abolish the Indian Penal Code and ask everyone to practise self-regulation? The very fact that there are laws proves that selfregulation is not sufficient; there must also be some external regulation and fear of punishment. At the same time, he clarified that he wants regulation of the media, not control. The difference between the two is that in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest. The media has become very powerful in India and can strongly impact people’s lives. Hence it must be regulated in the public interest.
It is true that currently Press Council of India (PCI) has no control ver electronic or digital media though of late a high demand is being raised for the same particularly by present PCI Chairman, Markandey Katju. Undoubtedly, in the contemporary times, we do need an integrated National Media Council which has adequate control over every aspect of news dissemination whether by press, news broadcasters or news websites.
Rupam Lal Howlader - Assiatant Professor of Law, Uttaranchal University, Dehradun, INDIA.
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