Deciphering the Right of Freedom of Speech and Expression of media by - Ms. Medha Tiwari
Authored by - Ms. Medha Tiwari
Abstract
Media, in all it’s prevalent
forms have become an inevitable part of our lives and therefore
omnipresent. In this
fast-paced world, each one of us sits in front of an electronic gadget to pass
time. The evolution of media and visual entertainment has witnessed a drastic
change in the current decade due to the era of digitalization. The whole
concept of visual entertainment started with few television channels and now it
is easily available and accessible through the mobile phone, personal
computers, and Smart TVs. This research paper is centred on decoding the Rights of Freedom of
Speech and Expression of media in context of the Indian Constitution and
international covenants.
Introduction
Freedom of the Media to which our
Founding Fathers were greatly attached finds no mention in Part III of our
Constitution which guarantees certain fundamental rights. There is no specific
guarantee of Freedom of the Media as in the Constitutions of other countries.
Speaking on behalf of the Committee, Dr. B.R. Ambedkar expressed that, “the
media has no special rights which are not to be given or which are not to be
exercised by the citizen in his individual capacity. The editor of a Press or
the Manager of a Press is all citizens and therefore, when they choose to write
in newspapers, they are merely exercising their right of expression and in my
judgment, therefore, no special mention is necessary of the freedom of the
media at all.” The word “expression’ used in Art. 19 (1) (a) in addition to
‘speech’ is comprehensive enough to cover the press. The lack of specific
mention of the media in the Constitution created no difficulty when the
Supreme Court was called upon to protect the freedom of the media in
several cases, which came before it, right from 1950. Even the modern
science and technology have invented and are still inventing and bringing into
use many forms of expression and facilitate communication of ideas. The
fundamental right guaranteed thus includes collective right of the community,
the right of citizens to read and to be informed, to impart and receive
information. In substance, it is the right of the people to know.
The literal meaning of ‘Freedom’
means absence of control or lack of interference from any authority; so also,
it means no restrictions. Here freedom of press means the right or the liberty
to print, publish, or paint without any interference from the state or any
other public authority. But according to the principles of Jurisprudence, no
right or freedom or liberty can exist absolutely without restrictions; hence
freedom of press is also demarcated by number of restrictions.30 So here
freedom of press means the liberty to print, publish, or paint within the ambit
of rational and reasonable restrictions. The whole game is that, what should be
the sphere or area of freedom and what should be the demarcating lines of that
freedom. When it is said that the freedom of press prevails, then it means that
liberty of the press exists within the brackets of restrictions. The crucial
aspect is where one should draw the demarcating lines of restrictions; and how
much sphere should be allowed for the freedom of press
If the democracy has to be meaningful
and function effectively, then a free press is a sine qua non. Which is why
very often the freedom of press is described as the oxygen of democracy; and
without which a democratic society cannot survive. It is visibly evident,
especially since Independence, a free and vigilant Press has acted as a vital
agency to curb corruption and injustice. In addition, another important role,
the press plays are to formulate the public opinion which helps on one hand
imparting the knowledge to the society and on the other hand restraining the
tyrannical actions of the government. Right of freedom of speech and expression
is incorporated in Article 19 of the Universal Declaration of the Human Rights,
1948. It states that everyone has a right to hold opinion without interference.
This right of freedom of expression includes the right to hold opinions to
receive and impart information either orally or in writing or in any other form
through any of the agencies of the media. Article 19 of the International
Covenants on Civil and Political Rights 1976 also incorporates the right of
freedom of speech and expression. In India the right of freedom of speech and
expression is incorporated in 19(1)(a) of the Indian Constitution. This right
of freedom of speech and expression is a fundamental right in the Indian legal
system. The right to free press does not exist independently and is
incorporated in the right of freedom of speech and expression; and hence the
right to free press is regarded as a fundamental right.
Gradual progression of the freedom of media:
However, the most significant day in
the history of press Regulations was the 26th of January 1950the day on which
the Constitution was brought into force. The colonial experience of the Indians
made them realise the crucial significance of the Freedom of Press. Such
freedom was therefore incorporated in the Constitution; to empower the Press to
disseminate knowledge to the masses and the Constituent Assembly thus, decided
to safeguard this Freedom of Press as a fundamental right. Although, the Indian
Constitution does not expressly mention the liberty of the press, it is evident
that the liberty of the press is included in the freedom of speech and
expression under Article 19(1) (a). It is however pertinent to mention that,
such freedom is not absolute but is qualified by certain clearly defined
limitations under Article 19(2) in the interests of the public. It is necessary
to mention here that, this freedom under Article 19(1)(a) is not only cribbed,
cabined, and confined to newspapers and periodicals but also includes
pamphlets, leaflets, handbills, circulars, and every sort of publication which
affords a vehicle of information and opinion.
The issue of power exercised by the press is
not only India’s problem but a global issue. India being a diverse and plural
democracy, such issues become even more sensitive and important in case of
biased, unfair, and sensational reporting. The scandal of phone hacking by
“News of the World” led the British government to set up a committee to enquire
into the „Culture, Practice and Ethics’ of media including media’s relations
with police and politicians under Justice Leveson. This Leveson Report has
slammed media for reckless and sensational reporting and has recommended
setting up of a strong and independent regulator.
The Press Council of India entertains
complaints by the press and against the press. The study of last 10 years
annual reports of the Press Council maintains on the record that only 13% of
the total number of the complaints were filed by the press regarding threat to
freedom of press whereas 87% of complaints were filed against the press. The maximum
number of complaints was filed against defamatory writings. Complaints against
the press are filed under four categories: violation of principles and ethics;
press and morality, defamation, communal, casteist, anti-national and
anti-religious writings.
Press is the fourth pillar of Indian democracy. The foremost duty of
this fourth pillar is to serve the nation at large. The contribution it makes
to the society is enormous. Areas where even the slightest literate population
resides, even in today’s world where the entire nation is lost in the land of
social media, a significant number of individuals in our country still prefer
electronic and print media to be their source of authentic information. It is
the need of the hour that the media remains unapologetic in dispensing it’s
duties towards nation building.
The decreasing liberty which the journalists are now left with is
killing their freedom to report freely without prejudice in mind. They, now a
days are burdened by pressures of all kind including those from the owner of
their broadcasting channel and at ties from the ruling governments to refrain
from showing stories which may tarnish their image. These surmounting pressures
are forcing the media personnel to work in a closed self-censored environment
where a story which pleases all the masters is the real news story to be
printed or broadcasted respectively.
Thus, the question which arises here is not the declining ranking of
India in press freedom index, but the major question as of now is whether we as
a democracy will be able to save the voices which awaken us every time we are
surrounded by danger. The answer to this question lies with a lot of
stakeholders like the legislators, press regulating bodies, civil societies and
to a large extent to each journalist individually. It will be a result of the
collective effort that the freedom of media will be saved from collapsing in
India.
Underlying restrictions imposed on the
freedom of media:
In the last few decades since the
Constitution came into force a sufficient body of case law has grown up upon
the subject. These cases show that how the state often tried to make the press
less active by adopting various methods, i.e. legislative and administrative
claiming that the grounds were saved by Article 19 (2) of the Constitution In
Romesh Thappar's case[1],
Patanjali Sastri J. delivering the majority opinion observed: "The
Constitution has placed in a distinct category these offences against public
order which aim at undermining the security of state or over throwing it, and
made their prevention the sole justification for legislative abridgement of
freedom of speech and expression, that it is to say, nothing less than
endangering the foundations of the state or threatening its overthrow could
justify curtailment of right to freedom of speech and expression"
The Supreme Court expressed the
opinion that a statute seeking to restrict the freedom of speech and expression
for maintaining the public order or ensuing public safety could not be
considered valid in as much it purported to impose restrictions for a more
comprehensive and wider purpose than contemplated by the constitutional
provisions which delimited the sphere of legislative abridgement by words,
"undermines the security of or tends to overthrow the state". The
Court, thus made it clear that only the serious and aggravated forms of public
disorder calculated to endanger the security of state and not the relatively
minor breach of peace of purly local significance upon which the freedom of speech
and expression may be curtailed. While considering the laws dealing with the
problem of public order the Supreme Court in earlier cases adopted a broader
view.
Conclusion
Law and media have distinct roles to
play and there need not be any overlapping of the responsibility. Although the
media does a commendable job through reopening of the cases, it only goes to
raise questions about the law enforcement in the country. Also, there must be
due emphasis placed upon a fair trial and court procedures which the media
regularly prejudices. The legal provisions relating to the right of freedom of
speech and expression of media are ambiguous. The advancement in the field of
science and technology, has led to the emergence of a new aspect of digital
media, which to quiet a large extent is still untamed and unregulated. The
legislature is required to draft and formulate laws that check these lacunas
which are prevelant in the media law realm of the framework of India.
References
1.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rule 2021
2. Information and Technology Act, 2008
3. Constitution of India, 1950
4. Indian Penal Code ,1860.
5.J.N.
Pandey,Contitutional Law of India;Central Law Agency,52nd
Edition,2015.
6.
H.M.Seervai,Contitution Law of India,4th ed., Vol. 2, 2007.
7.Media
Law Handbook Published in 2010 by: Bureau of International Information
Programs United States Department of Stats.