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MEDIA, THE FOURTH PILLAR OF DEMOCRACY: A CRITICAL ANALYSIS
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MEDIA, THE FOURTH PILLAR OF DEMOCRACY: A CRITICAL ANALYSIS
SUBMITTED
BY - PRACHI PANDIT SHITOLE
LLM II
(2022-2023)
Savitribai
Phule Pune University
Progressive
Education Society’s
Modern Law
College, Pune
Media,the Fourth Pillar of Democracy: A Critical Analysis
ABSTRACT: The phrase "Freedom of
Press" is not specifically mentioned in the Indian constitution, but it is
implied in Article 19(1)(a), which states that every person has a basic right
to free speech and expression, and that media outlets are also allowed to
exercise this right. According to the Indian Supreme Court, even if freedom of
speech and expression in the media is not explicitly protected as a basic
right, such freedom is implicit in the Constitution. All democratic and
civilised nations have traditionally valued press freedom, and Edmund Burke
once referred to it as the Fourth Estate of Democracy. But due to its negative
effects in recent years, the fourth pillar urgently has to be restored. The
media used to be widely respected as the voice of the people, but today it is
synonymous with lies, hostility, propaganda, blackmailing, etc. This perception
suggests that the quality of the media has declined dramatically. Therefore,
new laws, norms, frameworks, or guidelines are urgently needed to limit the
negative effects of the media, restore its former splendour, and bring it back
into the mainstream, which seems lost in modern India.
Key Words: Freedom of Speech, Media,
Democracy, Rights, Restrictions, Regulations, Expressions, Communications
Introduction
The plural of "medium" is
"media," which, in general, denotes any form of communication. This
comprises information on art, the news, education, and a wide range of other
topics, and it encompasses everything from printed paper to electronic data.
Two examples of the physical and virtual media that are used to transmit the
intricately encoded signals that make up digital media, which comprises an
ever-increasing portion of modern communications, are fibre optic cable and
computer networks.
Edmund Burke asserts that the media
is the fourth estate of democracy and is acknowledged as such[1]. The
media has a greater reach and a direct impact than any other medium, making it
easier to persuade people. Additionally, it has the power to change people's
perspectives in whatever way they desire.
To obtain unfair advantages and boost their financial earnings, the
media now manipulates public opinion. The same media that formerly acted as
society's eyes, ears, and mouth is now putting the public in the dock with its
created and fabricated information that passes for news.
The Indian Constitution does not
expressly mention the media in particular, but it is implied by Article
19(1)(a). A vital component of civil society is a free and impartial media, and
any form of media repression is unfair, intolerable, and poses a danger to the
right to free speech and expression in a civilised society. Media speaks for
the general public. It is the platform where voices are created, disseminated,
and heard because of how widely they reach. It links people together and is
beneficial in many ways. There is another side to a medium that is highly
unrealistic in relation to it, and many people will never accept the negative
aspect of it. The fight for market control and competitiveness can also be
exceedingly brutal in the media, which has greatly harmed its reputation. A few
examples of the media's ugly side include its propensity to incite hatred, its
dissemination of false information and the manipulation of facts, as well as
its security of public information in the public domain. The media is a
multibillion dollar industry, and with better connectivity and reach, the
uncanny and ugly side are exposed to the general public. If we consider the
media's positive aspects, it does play a significant role as well, but the
downsides have become so prominent that the benefits are no longer
visible. Media is still seen as a
necessity of the hour, and no one disputes its significance. However, the
question of whether it is the same media that gave rise to the proverb "a
pen is mightier than a sword" or whether it is merely a puppet of the
ruling party or those with money remains.
Emergence of Media in India: Brief History
Television, radio, movies,
newspapers, magazines, and Internet-based Web sites/portals are just a few of
the various forms of media that make up Indian media. Since the late 18th
century, there have been media outlets in India. Print media was established in
1780, radio transmission began in 1927, and Auguste and Louis Lumière motion
pictures were first screened in Bombay in July 1895. It is one of the biggest
and oldest forms of media in existence. Even before Ashoka the Great founded
the Indian empire on the principles of justice, transparency, morality, and spirituality,
the media in India has been free and independent for the majority of its
history. Prime Minister Indira Gandhi established a state of emergency from
1975 to 1977, which was the brief time when the Indian media had to worry about
possible government retaliation.
Laws
Governing Media in Pre and Post Independent India Pre- Independence
Legislations-
The
Censorship of Press Act, 1799 –
The law was passed by Lord Wellesley
in advance of the French invasion of India. It had virtually enacted pre-censorship
and other press restraints throughout the conflict. Under Lord Hastings, who
held progressive views, these limitations were loosened, and pre-censorship was
abolished in 1818.
The Licensing Regulations, 1823-
The regulation was passed by John Adams,
the acting governor general at the time, who held reactionary views (to what?).
Without a licence, it was against the law to create or operate a press,
according to these restrictions. These limitations were mostly aimed at
newspapers published in Indian or edited by Indians. Because of this act,
Rammohan Roy's Mirat-ul-Akbar had to cease publication.
The Press Act of 1835 or Metcalfe Act-
The offensive 1823 ordinance was abolished by
Metcalfe Governor-General (1835–1866), earning him the moniker "liberator
of the Indian press". A printer or publisher was obligated by the new
Press Act (1835) to provide a specific account of the location of a publication
and halt operations if compelled by a similar statement. A liberal press policy
led to the quick expansion of newspapers.
The Licensing Act, 1857-
Due to the emergency created by the
1857 uprising, this Act added licencing requirements to the Metcalfe Act's
already established registration process. It also reserved the government's
right to halt the publication and distribution of any book, newspaper, or
printed material as it saw fit7. This statute, which was of a regulatory rather
than a repressive nature, replaced Metcalfe's statute of 1835. According to the
Act, (i) every book and newspaper had to include the name of the printer and
publisher as well as the location of publishing; (ii) a copy had to be given to
the local government within a month of a book's publication.
The Vernacular Press Act, 1878-
The racial animosity between the
ruler and the ruled was a painful legacy of the 1857 uprising. In political
issues after 1858, the European press consistently supported the government
while the local press was critical of it. Strong popular opposition to Lytton's
imperialist tactics existed, and it was exacerbated by the dreadful famine of
1876–1877 and wasteful spending on the imperial Delhi Durbar. The Vernacular
Press Act (VPA) was created to more effectively penalise and suppress seditious
material as well as "better control" the vernacular press.
The Newspaper (Incitement to Offences) Act, 1908 -
The act, which was designed to combat
extreme nationalist activity, gave magistrates the authority to seize press
assets that published unacceptable content that would promote violence or
murder.
The Indian Press Act, 1910-
The worst aspects of the VPA were
reinstated by this Act, which gave local governments the authority to forfeit
or deregister newspapers that violated the law, demand security from printers
and publishers at registration, and require printers to give free copies of
each issue of their publications to local governments.
The Indian Press (Emergency Powers) Act, 1931-
This Act gave sweeping powers to
provincial governments to suppress propaganda for the Civil Disobedience
Movement. It was further amplified in 1932 to include all activities calculated
to undermine government authority.
Post-Independence Legislations-
The Press Enquiry Committee, 1947-
The Committee was established to look
at press regulations in light of the fundamental rights established by the
Constituent Assembly. It suggested changes to the Press and Registration of
Books Act, the Indian Emergency Powers Act of 1931, Sections 124-A and 156-A of
the IPC, among other things..
The Press (Objectionable Matters) Act, 1951-
The Constitution's Article 19 (2) was
amended at the same time as the Act. According to the Act, the government had the
right to request and forfeit security for the publication of
"objectionable matter". Owners and printers who were upset were given
the option to request a jury trial. It was still in effect in 1956.
The Press Commission under Justice Rajadhyaksha in 1954-
The commission recommended in 1954 that the
All India Press Council be established, that presspage schedules be fixed for
newspapers, that crossword puzzle competitions be outlawed, that strict
guidelines be developed for newspaper advertisements, and that it would be wise
to avoid concentration in the ownership of Indian newspapers.
Additionally, the Working Journalists
(The Conditions of Services and Miscellaneous Provisions Act, 1955; The
Newspaper (Price and Page) Act, 1956; and The Parliamentary Proceedings
(Protection of Publications) Act, 1960; delivered books and newspapers to
public libraries.
Various Dimensions of Media
Media as a Player- Man has always communicated his ideas using a variety of means, including
symbols, signals, speech, script, print, and now computer language, dating back
to the beginning of legal history and beyond. A free and democratic society
needs ideas and information to flourish and survive, thus achieving this goal
would be impossible without ensuring that each and every individual has the
freedom to express their thoughts and opinions. The ability to speak and
express oneself freely became known as this. The Preamble to the Indian
Constitution makes the commitment to ensuring the freedom of thought, speech,
and religion for all Indian people.
The Preamble guarantees every citizen
of India the freedom of speech and expression, religious freedom, and the
ability to follow one's own beliefs, focusing on the fundamental goal of the
Indian Constitution. The Indian Constitution's Part III addresses fundamental
rights. under order to protect individual rights that the Constitution's
framers deemed essential, the right to freedom is guaranteed under Articles 19,
20, 21, and 22 of the Constitution. The first of the six freedoms guaranteed by
the right to freedom in Article 19 is the freedom of speech and expression.
The freedom to express one's beliefs,
thoughts, and convictions is guaranteed to all Indian citizens by the
constitution. They have the right to look for, receive, and share information
and ideas for this reason. Since the exercise of freedom of expression
necessitates a means of communication for ideas and information, it stands to
reason that the means of communication must likewise be free. The freedom of
the press is implicit in Article 19 (1) (a) of the Indian Constitution, unlike
the US Constitution, which expressly mentions it.
The freedom of the press is included
in the guarantee of the right to free expression, which also includes the
ability to publish and distribute, according to a very explicit ruling by the
Supreme Court. Therefore, the Apex Court determined that it was unnecessary to
create a distinct clause for press freedom.[2]
The Freedom of Media
Free speech and expression are
essential components of democracy. In addition to the Universal Declaration of
Human Rights and other international charters and treaties that have been
adopted to guarantee the protection of human and fundamental rights, it is
guaranteed by the Indian Constitution. them follows from these assurances that
the public has the right to acquire information and opinions without hindrance
and to propagate them internationally, as this is a crucial component of the
democratic process. In reality, this right is daily exercised by the media.
Thus, the right to free speech and expression involves two important
fundamental rights: the right to receive news and opinions, as well as the freedom
to impart news, information, and opinions. These rights essentially rely on
everyone who uses the media having the freedom to exercise their right to
unrestricted news gathering and opinion communication.
Right to freedom of speech and expression not confined to national
boundaries In the
case of Maneka Gandhi v. Union of India, the Supreme Court reviewed whether an
Indian citizen's right to freedom of speech and expression extends outside of
India's borders. In this historic decision, the Supreme Court ruled that a
citizen's right to freedom of speech and expression extends both domestically
and internationally, with no geographical restrictions on information gathering
and thought-exchange.
The court noted that the right to freedom of
speech and expression includes the freedom to talk and express oneself both at
home and abroad, as well as the freedom to share views and ideas with others
both inside and outside of India. The Court noted that by omitting the phrase
"in the territory of India" from the conclusion of Article 19(1)(a),
the Constitution's drafters had chosen to purposefully avoid restricting the
freedom.
Press as the Mother of all Other Liberties One of the most exhaustive and
illuminating exposition of the importance of the press and its being regarded
as “The mother of all other liberties” in a democratic society is contained in
the judgment of Venkataramiah , J. in Indian Express Newspaper v. Union of
India[3].
This case brought up significant
issues regarding journalistic freedom and the government's ability to tax.
Newspaper-owning firms filed a number of writ petitions in the Supreme Court
challenging the legality of the Customs Act of 1962's application of a levy on
newsprint. The petitioners who used a lot of newsprint to publish newspapers,
periodicals, magazines, and other publications argued that the tax had the
"direct effect of crippling the freedom of speech and expression as guaranteed
by the Constitution as it led to the increase in newspaper prices and the
inevitable reduction in their circulation."
"Freedom of expression has four
broad social purposes to serve: (i) it helps an individual to attain
self-fulfillment, (ii) it aids in the discovery of truth, (iii) it strengthens
the capacity of the individual to participate in decision-making, and (iv) it
provides a forum for the free exchange of ideas," said Venkataramiah J.,
who in this case believed that the press plays a very significant role in the
democratic machinery. Everyone in society should have the freedom to develop
their own opinions and express them openly.
The basic tenet is, therefore, the
right of the people to information. Therefore, everyone who supports citizens'
engagement in government should show their support for freedom of speech and
expression. While acknowledging the significance of the right to freedom of the
press, the Court ruled that there could be no immunity from taxation because
the Constitution's authors declined to include a provision for such immunity.
By deciding to give Parliament alone, rather than the State Legislatures, the
authority to charge taxes on publications, they had also taken care to
safeguard the press against local pressures.
the media's tax obligations The
freedom of speech and expression given by Article 19 (1) (a) and the freedom to
engage in any profession, vocation, trade, industry, or business granted by
Article 19 (1) (g) both apply to the newspaper industry. While the right to
exercise freedom of expression cannot be taxed, there are levieable taxes on
professions, occupations, trades, businesses, and industries. As a result, the
newspaper sector is subject to tax. However, a tax becomes unlawful when it
infringes on the right to free speech and muzzles that right. It won't be in
violation of Article 19 (2)'s restrictions as long as it stays within
acceptable bounds and doesn't inhibit freedom of expression.
Constitutional Perspective of Media
Freedom of speech and expression is
an essential aspect of liberty as stated in Maneka Gandhi v.Union of India[4].
In Tata Press v.Mahanagar Telephone Nigam Ltd[5].
This court ruled that freedom of
speech and expression includes commercial communication as well.Part III of the
Indian Constitution's Fundamental Rights Chapter was left out in response to
popular demand and the popularisation of human rights discourse following the
end of World War II. In the Constitution of India Bill, often known as the
Swaraj Bill and inspired by the famous jurist and freedom fighter
LokmanyaTilak, the demand for constitutional safeguards of human rights for
Indians was first expressed as far back as 1895. This bill proposed a
constitution for India that would guarantee the freedom of the press to each
and every individual, among other rights. One may say that the Indian press
made its debut.
It was one of those British tools
that the Indians later used to further their own agendas. As the press's
function changed significantly, it quickly emerged as one of the most potent
tools the Indians had at their disposal in their fight for independence from
the British. The firm has traditionally controlled the press, but after it
reversed that power, it became urgent to impose strict limits. There have been
judgements and repressive laws limiting journalistic freedom. The
"Founding Fathers and Mothers" of the Indian Constitution placed a
high value on press freedom as well as freedom of speech.
They held the opinion that a
democratic system cannot function without the freedom of the press and of
speech. They held that the right to criticise the government is at the heart of
political opinion freedom, which is vital to the idea of a free press. They
agreed with Jawahar Lal Nehru's perspective when he said, “I would rather have
a completely free press with all the dangers involved in the wrong use of that
freedom than a suppressed and regulated press[6]”
This freedom is guaranteed by Article
19(1)(a) of the Indian Constitution, which also ensures the right to free
speech and expression. It has been ruled that press freedom is a part of this
right to freedom. It is an underlying or inferred right. The economic and
commercial aspects of the press are governed by Article: 19(1)(g), which
guarantees freedom of profession, occupation, trade, or business, which is
constrained by Article: 19(6), which contains provisions for the public
interest, professional and technical qualifications, and state
nationalization-complete or partial.
Reasonable Restriction by Constitution of India on Media.
The constraints placed on the right
to freedom of speech and expression, as well as the restrictions placed by the state,
are both constrained by the concept of reasonability. Therefore, even while the
state has the authority to restrict freedom, this restriction is subject to
reasonable limits and is not absolute. Therefore, for a restriction to be legal
under the constitution, it must be reasonable. The Supreme Court ruled on the
reasonableness of the limits under Articles 19(2) to 19(6) in PapnasamLabour
Union v. Maduracoats Ltd.
i.
The
restriction in order to be reasonable must not be excessive that is, it should
not go beyond the need to avoid the mischief or injustice. It should not be
arbitrary.
ii.
The restriction should have a direct or proximate or reasonable
connection or link between itself and the object sought to be achieved.
iii.
The restriction to be reasonable should not be abstract. But no fixed
principles can be laid down and the standards of reasonability would vary from
case to case and time to time.
iv.
While interpreting the term reasonable, the court should keep in mind the
complex issues of the society and the intention of the legislature of the
statute in question.
v.
The term reasonable is of dynamic nature and hence the judiciary should
keep an elastic and practical approach while interpreting the term.
vi.
It is imperative for the court to analyze the social control before any
restrictions can be imposed on the fundamental rights.
vii.
For the interpretation of term
reasonable, it is necessary for the court to examine the social welfare and the
need of prevailing social norms and values.
viii.
The word reasonable has to satisfy the test of procedural reasonability
as well as substantive reasonability.
ix.
For a restriction to be reasonable must be in conformity with the test of
Article 14 of the Constitution. It means the restrictions should not be
excessive or discriminatory.
x.
While interpreting the term reasonability the courts have to keep in mind
the Directive principles of the state policy.
Following are the reasonable
restrictions provided by the Constitution of India under Article: 19(2) related
to freedom of speech and expression:
Sovereignty and integrity of the state- This ground was inserted by an amendment to curb the
tense reaction of the people, who were demanding separate entity of the
different regions of India.
Security of the state - The right to
free speech cannot be used in a way that jeopardises the state's security in
any way. The Supreme Court ruled in State of Bihar v. Shailabala Devi that
remarks made by people encouraging and inciting others to commit crimes like
murder, dacoity, robbery, etc. would unquestionably jeopardise the state's
integrity.
Public Order -The
word public order was inserted by Constitutional (First Amendment) Act 1951.
This clause was inserted to reduce the effect of RomeshThappar v. State of
Madras[7],
where the court had held that the right to circulation is a part of Right to freedom
of Speech and expression.
Decency or morality- The elaboration of this ground is reflected in Sections 292 to 294 of
the Indian Penal Code. In RanjitUdeshi v. State of Maharashtra[8],
the Supreme Court stated that the section 292 of Indian Penal Code is
constitutionally valid as it prohibits obscenity and promotes public decency
and morality.
Contempt of Court- In C.K. Daphtary v. O.P. Gupta[9],
it was held that the Section: 228 of the Indian Penal Code and Article: 129 of
the constitution are valid and fall under the ambit of reasonable restrictions
mentioned in Article: 19(2) of the Constitution. So the freedom of speech and
expression are subject to Articles: 19(2), 129, and 215 of the Indian
Constitution.
Defamation-
The right to freedom of speech
and expression does not, in any manner, encompass the ability to damage
someone's reputation. Defamation is a serious restriction on the freedom of
speech and expression since it results in injury to someone's reputation.
Incitement to an offence:- In State of Bihar v.Shailabala Devi[10]
it was decided that any speech which amounts to incitement of any offence could
be banned and the order of ban would fall within the reasonable restrictions
mentioned in Article 19(2) of Indian Constitution
Defamation: The demeaning aspect of Media-
Writing, publishing, and uttering a false
statement that harms someone's reputation or good name for personal gain is
defamation in India, which is both a criminal and civil offence. The Law of
Torts governs the civil defamation remedies. A victim of civil defamation may
file a lawsuit in high court or a lower court to get monetary damages from the
accused. The victim has the option to file a criminal complaint for defamation
against the defendant in accordance with Sections 499 and 500 of the Indian
Penal Code, 1860.
Criminal defamation carries a simple
imprisonment sentence that can last up to two years, a fine, or both. It is a
compoundable, non-cognizable offence under the criminal code. In Subramanian
Swamy v. Union of India33, the Supreme Court provided an explanation of the
constitutional legitimacy of defamation laws and regulations, concluding that
these laws and regulations do not violate the freedom of speech. The Supreme
Court further stated that while one must tolerate criticism, dissent, and
discordance, defamatory attacks are not something that must be tolerated.
Media Trial
In recent times there have been
numerous instances in which media has conducted the trial of an accused
and has passed the verdict even before the court passes its judgment. Trial by
Media it is the impact of television and newspaper coverage on a person’s
reputation by creating a widespread perception of guilt regardless of any
verdict in a court of law. This phenomenon is popularly called a media trial.
In State of Maharashtra v. RajendraJawanmal Gandhi[11]
the Supreme Court observed: “The trial of a person accused of a crime is
conducted in accordance with a legal process. A trial driven by the press,
electronic media, or public outcry is utterly opposed to the rule of law. It
might result in a justice miscarriage.Again, it cannot be ruled out that the
public growing accustomed to the routine spectacle of mock trials in the news
media may, in the long term, have negative effects on the public's support of
the legal system as the correct venue for dispute resolution.
Conclusion
Unquestionably, Indian media is
experiencing the wrath of society. The media industry was formerly seen to be
the most crucial component for getting heard and raising awareness, but
shifting attitudes and financial support are seriously undermining its
credibility. To limit the detrimental effects of media, laws and regulating
organisations appear a little cavalier. The media circulates and has the
ability to alter a person's perception on anything. It has a great deal of
power to affect people's thinking and the ability to change the entire dynamic
through individuals who take different perspectives from it. The media should
place greater focus on fair reporting in order to regain its lost trust. The
wrong needs to be denounced and the good must be valued. Since the media is an
essential component of the populace, it should place greater emphasis on
societal problems and convey them to the public in a form that is more accurate
and devoid of the negative impacts that modern media bears. The media must
recognise its essential independence and must uphold the law; it must not
supplant the judicial and executive branches of government or stray from its
commitment to honest, objective reporting. The law must be applied in a way
that takes into account how society has changed and ensures that the media is
aware of its obligations without violating any current laws of the land. It
must also be understood that any unwelcome restrictions on the media in a
democracy will also endanger society as a whole.
[1]
https://www.thoughtco.com/what-is-the-fourth-estate-3368058.
[2]
AIR 1978 SC 597.
[3]
(1985) 1 SCC 641.
[4]
AIR 1978 SC 597.
[5]
AIR 1995 SC 2438.
[6]https://www.academia.edu/34368018/Freedom_of_Press_in_India__Constitutionality_and_Scientific_Development
[7]
1950 AIR 124, 1950 SCR 594
[8]
AIR 1965 SC881.
[9]
AIR 1971 SC 1132.
[10]
AIR 1952 SC 329.
[11]
Crl.A. No. 838 of 1997 (Arising out of SLP (Crl.) No. 1560 of 1997
Article Information
MEDIA, THE FOURTH PILLAR OF DEMOCRACY: A CRITICAL ANALYSIS
Authors: PRACHI PANDIT SHITOLE
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
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