Legal

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This Blog is written by Hiba Abbas from St. Stephen’s College, Delhi University.  Edited by Naina Agarwal.

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INTRODUCTION

A universally well-known hallmark of India is its diversity and its heterogeneous society made up of a mixture of variegated cultures. India is home to multiple distinct socio-cultural societies with people practicing various religions, following a myriad of traditions and customs, and belonging to different groups and races. When India was on its path to finally achieve freedom, many political thinkers were of the opinion that the diversity that existed in India would not continue as it would be an impediment to the creation of a single unified nation. India places importance upon the idea of maintaining unity in diversity. This translates into a situation where despite cultural differences, the idea of living in peaceful coexistence with harmony and cooperation is promoted and encouraged.

The multitude of views and opinions that emerge in India is rooted in the very nature of diversity in the country. Freedom of the press is considered the cornerstone of democracy. One of the fundamental underpinnings on which an authentic and genuine democracy lies is a society where the viewpoints and interests of every member are not only taken into consideration but also heard. This system of participatory democracy is realized through the freedom of the press.

Freedom of press essentially refers to the right and liberty conferred upon people that deals with being able to communicate and disseminate information without running interference with the state or any other authority. It encompasses the right to publish, transmit, and promulgate one’s point of view, beliefs, and judgements without fear of censorship or constraints.

The entertainment law industry is a corpus of laws that supervise and regulate the mass media industry. This realm derives its significance from the very existence of the concept of freedom of the press as well as the extent to which it is allowed to be practiced in reality. In this area, the unbridled propagation of information becomes especially important. With the bourgeoning and advancement of technology, the entertainment industry and field of media has flourished and expanded exponentially. The notable significance of the conception of freedom of the press is embodied in one of Voltaire’s famous quotes- “I may not agree with what you have to say, but I will defend to the death your right to say it.”

SIGNIFICANCE

The existence of a free press and media is indispensable for the continuation of a democratic society. The extent to which the press is able to operate freely is a measure of how transparent the functioning of the state is. This is, in turn, an indicator of how democratic a country is. A well-informed media is of paramount importance for the active participation of people in societal issues that concern them. Democracies usually consist of three pillars, namely the legislature, the executive and the judiciary. The press fills in the role of the fourth pillar. It functions as a watchdog and keeps checks and balances on the other three organs of the democratic society. It regulates the policies of the government, especially those which could be formulated with mala fide intentions.

Freedom of press also derives its significance from the fact that it contributes heavily to the inception and development of an intelligent electorate. Its principal function is to impart a broad framework containing information about the various social, political, social, etc spheres of a country. It discharges its duty by proving to be an efficacious means to curb the arbitrary use of governmental power. It keeps a check on the elected representatives as well and compels them to be accountable and responsible to the people whom they were elected to represent and serve. Public interest is furthered with the help of the press and media as they publish factual information which is essential for the voters to be able to make responsible assessments of the current government. This empowers them to make efficient decisions in the future. One of the purposes a free press and media try to achieve is apprising the public about the cautious use of this fragile freedom before the state tries to impose measures to curb it.

The Blackstonian conception of freedom forms the basis of the notion of an unrestrained press. According to this, an unconstrained press is essential and integral for the transparent functioning of the state. This concept does not agree with the practice of restraining the press prior to its publications. But, the concept is also not compatible with the misuse of the liberty given by engaging in activities that are outlawed. It agrees that everyone should be in possession of an unquestionable right to convey their opinions but, if this contains illegal or improper elements, then they would be liable to be punished.

The implementation of censorship procedures applied to publications becomes an important and problematic aspect of entertainment law. Although, there is no explicit provision regarding censorship in the Constitution of India, the suppression of any publication, whether it’s a movie or a speech or a book, is considered to be a destructive force for the society.

IMPACT

The press and media are platforms through which public discourses can develop and be transmitted to a wide audience. But, its role is not just limited to being a medium where views are communicated to one another. The discussion that this leads to constructs a democratic structure where everyone is able to mold and evolve their thoughts, opinions and beliefs. For this to be authentic and beneficial, the public will require an unembellished description of events. This will not only facilitate the forging of valuable opinions but also enable people to engage in fruitful discussions where they can contribute and offer their own stances to plan their plan of action. The freedom of press plays an important part in acting as an instrument and agent of social change by promoting the mobilization of people to a larger degree.

The liberty that is conferred upon the press allows it to be free of restraints and transmit reliable and trustworthy information.  Excessive constraints would lead to a situation where the media will showcase only what the government wants to show the audience. The public will experience a deficit in resources to compile and analyze information relevant to their betterment. They will not be able to expose government malfeasance. A menace and danger to either the press or the radio or motion pictures is a threat to all. The triumph of any of one these is a victory for all. There is a notable social and moral matter at stake in all of these mediums. Their concerns are akin to each other. It is the fundamental principle of communicating truthful information that is under threat and not the benefit of any institution.

The impact of a free press is felt by all governmental authorities and agencies. Freedom of the flow of information creates a responsible body of citizenry that is capable of curtailing any exercise of unlimited powers of the government as well as their tyrannical actions. This can take place by openly criticizing the policies of the government. 

A higher degree of participation in political activity and a free press also leads to a lower degree of corruption and a more active political and civil society. This will enable the citizens to make responsible decisions about the future elected representatives that can reflect the preferences of the citizenry more efficiently and accurately.

Liberty of the press can also forge a community consisting of like-minded people within the state who are bound by similar interests. Solidarity and stability are important elements in expressing dissent as well.

STATUTORY PROVISIONS

The Universal Declaration of Human rights (1949) provides for free expression in Article 19 according to which, everyone has the right to hold opinions, to receive and impact information either orally or in writing or in any other form through any other agencies of the media

Article 19(1)(a) of the Constitution of India lays down that ‘All citizens shall have the right, to freedom and expression.’ The right to freedom of the press is not expressly laid out. But, it is now an accepted idea that, through judicial interpretations, the freedom of the press is implicit in this article and is encompassed within the ambit of the given provision. This is unlike the US constitution, which unambiguously provides for clear-cut freedom of the press. However, Article 19(2) enshrines certain reasonable restrictions on the freedoms detailed out in Article 19(1)(a). These limitations are in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with other foreign States, public order, and decency or morality. The constraints also provide safeguards against the contempt of court, which means that no one can issue or publish anything which could potentially lead to a decline in the authority of the court or hamper any judicial proceeding or interrupt the administration of justice. One also cannot defame in the name of exercising their freedom of speech and expression. The provision of defamation is laid out in Section 499 of the Indian Penal Code. Another restraint on this freedom is associated with the right to privacy. This right was declared to flow from Article 21 of the constitution according to which, ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law.’ This was a judicial interpretation in Justice K.S.Puttaswamy (Retd) v. Union Of India, 2018. This prohibits the press and media from invading the privacy of someone by publicizing and publishing something without obtaining the consent of the person/persons involved.

The Preamble of the Indian Constitution, which is deemed to be the essence of the Constitution, also provides for the liberty of thought, expression, belief, faith and worship. This could be taken to imply the existence of freedom of speech and expression as well as the right to free press.

The following are some statutes that regulate and govern the print media:

1. The Press Council Act, 1978

2. The Press and Registration of Books Act, 1867

3. The Press (Objectionable Matters) Act, 1951

4. The Newspaper (Prices and Pages) Act, 1956

Given below are some statutes that are involved in administrating and supervising the realm of media and entertainment:

1. Cable Television Networks (Regulation) Act, 1995

2. The Cinematograph Act, 1952

3. The Copyright Act, 1957

4. The Prasar Bharati (Broadcasting Corporation of India) Act, 1990

CASE LAWS

A noteworthy case about the arguments surrounding the concept of the freedom of press is the case of Romesh Thappar v. The State of Madras, 1950.This journal was printed and circulated in Bombay. The government of Madras, in the exercise of their powers, as conferred by section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949, prohibited the circulation of the aforementioned journal. This was justified by claiming that the ban was necessary for public safety. The petitioner moved the court on the claim that this prohibition infringes upon his fundamental right, as enshrined by Article 19(1)(a) of the Constitution of India. According to the court, the freedom to disseminate information is implicit in the right to freedom of speech and expression. This is guaranteed by ensuring liberty with respect to the circulation of these ideas. Hence, the order that banned the entry and circulation of the journal was quashed.

Another prominent case is the Bennett Coleman & Co, and Ors v. The Union of India and Ors, 1973. The petitioners, who were a few media corporations engaged in the activities associated with the publishing of newspapers, moved the court in an attempt to oppose various constraints imposed upon the import of the newspapers provided under The Import Control Order, 1955. Some limitations were also enforced under the Newsprint Order, 1962 and the Newsprint Policy of 1972-73. The latter detailed out the total number of pages allowed to be published and disallowed the media conglomerate from altering aspects regarding the circulation. According to the court, a free press was a vital component of Article 19 (1)(a). Limiting the total number of pages would reduce the circulation of information and hence, this was not justifiable. This was considered to be a quantitative restriction in nature. The court also held that the quantitative and qualitative aspects of the freedom of press are considered to be restrictions and in this case, they were not legitimate. The court also referred to the case of Brij Bhushan and Another v. The State of Delhi, 1950. This case dealt with the censorship of media, which took place prior to its publication. The court held that to disallow someone from communicating their point of view would be equivalent to abolishing the freedom of the press.

The case of Binod Rao v. Minocher Rustom Masani, 1976 relates to censorship. The Bombay High court held that expression of dissent was not a reasonable justification for prohibiting its issuance or publication.

ANALYSIS

To communicate one’s beliefs, opinions and thoughts is a desire inherent in every individual. To try to express one’s sentiments to others is an important social process. For this to be taken away would mean that one is deprived of their agency to express and convey their ideas to others. This freedom is not just a right on its own but also assists in the realization of other rights.

Freedom of press should not be interpreted to be perceived as a sanction to disregard duty and the rights of others. The possession of this right should not be taken as the right to engage in unlawful activities as well. This freedom is also not absolutely unbridled. There are many measures to moderate it and to prevent its misuse in a way that proves to be harmful to others. This liberty has to be practised cautiously.

The media must also not be extremely biased towards one viewpoint. This could foster more prejudices and in turn, leading to greater intolerance. An important factor embedded within the concept of freedom of press is the ability to be able to tolerate opinions that are incompatible with one’s own. Even if someone disagrees with the ideas of others, it becomes essential to tolerate disparate perspectives to be able to construct a community where everyone’s outlook is respected.

Another important element to be noted is the fact that not everyone has the access to print media. This aggravates the already existing social gap and inequalities, worsening the conditions of those who are unable to make use of the press. If efforts are made to help make media attainable and accessible to the marginalised, it will aid in rectifying the disparity by representing a much wider section of the population. This will enable the marginalised to get more opportunities to participate in the society and contribute to the social and political aspects of the processes of governance.

CONCLUSION

The incorporation of the freedom of press and media within the ambit of the right to freedom of speech and expression has obtained a salient position. The extent to which this liberty is provided indicates the quality of democracy. It serves to convey information to the people about the policies of the government and their intentions. It also conveys to the government what the people wish to achieve. This freedom cuts across geographical boundaries and helps in forming bonds with people of different areas. The citizens of any country are reliant on the media for the news. They cannot always obtain this information on their own. In this way, the press also takes on the role of the custodian of the public. It fulfils the goals in a pluralistic democracy by providing individuals with a platform to express their views. It embodies the concept of accountability as well.

But no freedom is absolute and without some kind of restrictions. This would lead to social disarray and uncontrolled sanctions. While laws can reasonably restrict these rights, any law which arbitrarily infringes upon these rights cannot encompass the nature of a reasonable restriction.

REFERENCES

(1) 1950 AIR 124

(2) 1973 AIR 106

(3) 1950 AIR 129

(4) WP (C) 494/2012

(5) 1986 AIR 515

(6) (1976) 78 BOMLR 125

(7) Price, Byron. “Freedom of Press, Radio, and Screen.” The Annals of the American Academy of Political and Social Science, vol. 254, 1947, pp. 137–139. JSTOR, www.jstor.org/stable/1026151. Accessed 23 Sept. 2020.

(8) Govindu, V. “CONTRADICTIONS IN FREEDOM OF SPEECH AND EXPRESSION.” The Indian Journal of Political Science, vol. 72, no. 3, 2011, pp. 641–650., www.jstor.org/stable/41858840. Accessed 23 Sept. 2020.

(9) Barrett, Cyril. “Censorship.” Studies: An Irish Quarterly Review, vol. 53, no. 210, 1964, pp. 149–158. JSTOR, www.jstor.org/stable/30088826. Accessed 23 Sept. 2020.