Open Access Research Article
ON FREEDOM OF SPEECH AND EXPRESSION CONCERNING SOCIAL AND ELECTRONIC MEDIA
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Article Details
ON FREEDOM
OF SPEECH AND EXPRESSION CONCERNING SOCIAL AND ELECTRONIC MEDIA
AUTHORED BY
- MR. NIRUPAM BHATTACHARYA,
Assistant
Professor in Law, Haldia Law College
ABSTRACT
The Constitution of India provides
freedom of speech and expression to all its citizens which is subject to
reasonable restrictions namely in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign
States, public order, decency or morality or about contempt of court,
defamation or incitement to an offence. The said restrictions ensure that the
freedom of speech and expression is not transgressed by the citizens in any
manner but so utilized to bring out the best in them. Media plays a major role
in shaping the nation by way of broadcasting 24x7 news channels, science and
technology channels, sports channels, etc. Amidst all these, as news channels
are a major form of informing the news events, and news stories from nations
and the world, they have been termed as the fourth pillar of democracy. Though
the Constitution of India did not specifically provide any rights to the press,
freedom of the press was guaranteed time and again through consistent judicial
decisions which specified that the press had the same rights of free speech as
any other citizen under the Constitution of India and the same were also
subject to reasonable restrictions. As the use of newly found social media kept
increasing due to its unique concept of sharing live videos, and photographs
through social networking sites such as Facebook, Instagram, WhatsApp, Twitter,
etc. the right of freedom of speech and expression found a new platform to
stand on. Anyone and everyone can now use social media to make himself heard or
to give his opinions and share his views with anyone else on a public platform.
The widespread use of social networks also came to be used by news channels.
News channels created their websites which continuously updated the news
headlines through reports, photos and videos. Anyone on the go could stay
abreast with the latest happenings through social media and even give his views
on any issue, be it political, social, national or international.
Keywords: freedom of speech and expression, broadcasting
24x7 news channels, social media, Judiciary, India, etc.
1. INTRODUCTION
The Constitution of India is the
basic document of the nation. Amongst various other provisions that state the
working of the executive, legislature and judiciary, it also sets down the
rights, duties and freedoms available to every citizen and the restrictions
thereupon. These rights were considered inevitable by the framers of the Constitution
to guarantee a proper living for all citizens of the nation. Article 19(1)(a)
of the Constitution of India specifies that:
All citizens shall have the right to
freedom of speech and expression.
Article 19(2) provides that: Nothing in sub-clause (a) of clause
(1) shall affect the operation of any existing law or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or about
contempt of court, defamation or incitement to an offence.
A combined reading of both provisions
creates the result that all the citizens of the nation are entitled to freedom
of speech and expression but only to the extent that it does not violate the restrictions
which have been laid down on the said freedom. If any individual during the
exercise of his freedom of speech and expression steps upon a right of the
same/similar kind of any other person, such an exercise will be violated under
Article 19(2). Thus, the Constitution has taken care that nobody can overuse
his freedom at the cost of overstepping on the same rights of another citizen.
Article 14 of the Constitution provides for “equality of law” and “equal
protection of law”. Every citizen is equal in the eyes of the law and there is
no scope for discrimination on any ground. Hence, the freedom as provided under
Article 19(1)(a) shall also be equally available to every citizen. The said
freedom is immensely important and the same can be figured out considering that
media which has been considered the “Fourth Pillar of Democracy” has also been
equipped with the freedom of speech and expression meaning that even the major
forms of media, namely the print media, electronic media as well as the
recently evolving social media have been provided freedom of speech and
expression while performing their functions.
Though nowhere specifically provided
for in the Constitution, media has been conferred with freedom of speech and
expression by the judiciary under Article 19(1)(a) as it has been conferred to
every citizen. It is of utmost relevance to media because media expresses
itself to the world at large. Its news stories, news reports, articles,
advertisements, editorials, etc. are read by one and all to update themselves
with the who’s who of the world. If the said right is ever taken away from the media,
it may result in a chaotic situation where journalists and editors are unable
to produce news stories as and when they happen. The news channels cannot conduct
interviews, debates or opinion polls thus resulting in total unawareness for
the general public regarding what’s happening in the world and who is to be
held accountable for the same. Decisions will be taken bureaucratically as
nobody with authority would be responsible to the public.
Media is the fourth estate in a
democracy. It plays a major role in informing the public and thereby shaping
perceptions and through it the national agenda. Considering how literacy levels
are increasing across the world, every individual requires information of one
kind or the other mostly relating to current affairs, political scenarios,
scientific developments, social upliftment, art and culture, sports, finance,
etc for survival in the world.
Due to continuous developments in
science and technology, the media has developed modern manners of presenting
its news stories. Gutenberg’s invention of the printing press in the 14th
century has proved to be a boon to the world. The newspapers that can be
printed in millions of copies every day now would have been impossible
otherwise. But today print media alone is not the sole pioneer of the media
landscape.
Today, even though newspapers have
created a firm space amidst the people, the news carried through electronic and
social media is equally utilized by the public. The invention of the internet
and its easy accessibility through computers, smartphones, notebooks and other
electronic devices has changed the way people get the news. E-papers, online news,
expression of views, opinion polls, online surveys, tweets and comments have
made the news system not just a one-way communication from media houses to the
public but an informal and prompt exchange of views and ideas concerning
current affairs or any political event. People have found a platform where they
can express what they feel in respect of anything that is happening in the
world. Gone are the days when the major sources of communication, news and
entertainment were just selective national and local newspapers, All India
Radio and Doordarshan.
While newspapers and magazines were a
form of print media which was the earliest form of media communication, it was
taken over by electronic media which mainly included television and radio.
Today, media offers several other forms of communication which are faster,
easier and more easily accessible than any of the earlier sources of
communication like smartphones, laptops, tablets, etc.
It would be impossible to imagine
living sans the various forms of media that are available today. But like
everything that in excess becomes unhealthy and eventually harmful, even media
can be held responsible for several flaws emerging out of the freedom of speech
and expression that has been provided to it. India under Article 19 has given
the media, freedom of expression because governmental functions must be
transparent and the perennial duty of a free press, even under grave risk, is
to prevent the three instrumentalities of the State from deceiving people.
Alas, the literacy indigency and
amenability to clever misrepresentation of lies by the news media is a syndrome
and the vast agrestic are victims. Starting with freedom of expression, three well-known
justifications are often advanced. The first view is that freedom of expression
is essential to a person’s autonomy and self-fulfilment.
The second is the marketplace of
ideas, that minimal government regulation will allow robust debate between
citizens that are most likely to lead to the truth. The third justification is
that freedom of expression is necessary. [1]There
is an overlap between these justifications and all have been subject to
extensive criticisms. Even the judiciary has time and again recognized the
freedom of the press. Though neither the Constitution of India nor the
legislators have anywhere specifically provided for the freedom of speech and
expression as available to the press, the Indian judiciary has through its
various landmark judgments specified that the freedom of speech and expression
as available to the citizens of India is also available to the press and media
houses.
Likewise, just like the citizens’ rights
are restricted by reasonable restrictions as mentioned under Article 19(2), the
rights of the press and media have also been curtailed by these reasonable
restrictions.
1.1 RIGHT OF PRESS AND MEDIA IN LIGHT OF
ARTICLE 19(1)(A) AND 19(2)
Article 14 of the
Constitution provides for “equality of law” and “equal protection of law”.
Every citizen is equal in the eyes of the law and there is no scope for
discrimination on any ground.[2]
Hence, the freedom as provided under Article 19(1)(a) shall also be equally
available to every citizen. The said freedom is immensely important and the
same can be figured out considering that media which has been considered the
“Fourth Pillar of Democracy” has also been equipped with the freedom of speech
and expression meaning that even the major forms of media, namely the print
media, electronic media as well as the recently evolving social media have been
provided freedom of speech and expression while performing their duties. Though
nowhere specifically provided for in the Constitution, media has been conferred
with freedom of speech and expression by the judiciary under Article 19(1)(a)
as it has been conferred to every citizen. It is of utmost relevance to media
because media expresses itself to the world at large.[3]
The value of media
freedom comes from the way it serves the interests of the public and the audience.[4] Hence,
the researcher has surveyed questionnaires from different groups of professionals
in society. Chapter Six deals with suggestions and conclusions based on the
research work. The same has been made after thorough research carried out through
doctrinal and non-doctrinal studies. It has been concluded that since social
media came into existence and its usage started being spread to the common man,
electronic media has somewhere lost its grip of monopoly. With electronic
media, most of the information communication was a one-way path with only news
channels broadcasting the news reports and events.
But with social media,
information communication is both-sided and can be responded to through tweets,
videos, images, etc. Anyone who is not a professional journalist also can
report a news event by sharing photos and videos around him on the platform of
social media. For the reason of continuing to have the upper hand in journalism
and news reporting, the media has resorted to indulging in activities of media
trials and sting operations.
At the same time, running
a media house requires huge budgets which if the media undertakes only the
objective of social service, cannot be fulfilled. Hence, media has to balance
between earning respectable amounts without making profit only as its sole
motive on the one hand and the other hand it has to give service to society as
its powers of presenting a picture of the world before society are enormous.
For this reason, the media uses its powers to present party-specific positive
reports instead of monetary favours which results in paid news.
2.
DEVELOPMENT OF MEDIA
2.1. INTRODUCTION
The steady growth of
science and technology has given many gifts to modern-day man. Endless research
and continuous experiments have made many inventions possible. Today, devices
that were once merely a dream for millions have become a part of common
day-to-day equipment. Thanks to scientific growth, the world that was once
extremely difficult to even comprehend, has come down to man’s fingertips.
Anybody in any part of the world can be contacted within a couple of minutes
without any hassles. Likewise, what happens in one corner of the world can be
informed to the rest of the world in just a couple of minutes. Not only
informing, but with the help of modern-day powerful satellites, the event can
be broadcast live to the entire world. Gone are the days when people used to
eagerly wait for morning newspapers or evening news to be broadcast to find out
what’s happening across the country and throughout the world.
Older forms of media like
publishing books and newspapers used to require expensive and huge-sized
printing presses but their circulation was limited only to a fraction of
people, i.e. those who lived in the same nation or state. When electronic media
took over, broadcasting via radio and television again relied on expensive equipment,
satellites and studios to transmit signals around a country, regionally or
globally. The rise of social media in recent years has made a significant
change in the way communication is made, be it a personal one like chats and
conversations or a public, one like sending news and other information.
Communication today can be made merely with the help of a mobile phone and
internet connection instead of having to rely on newspapers, letters,
telegrams, huge television sets or radios, cable connections, etc. Not only
that but sending information through social media is also comparatively faster than
any other previous mode.
Thus, before social
media, both print and electronic media were expensive as well as time and space-consuming
forms of news transmission. Talking of media, today it is an entity in itself.
It is powerful enough to
not only inform people but even influence their decisions. Print and electronic
media, which were once upon a time the only forms of media have taken a major
setback against modern-day forms of media, namely social media. Needless to
say, the journey has been long and difficult but the fruits that are being
reaped today have made it a worthwhile one. News, be it political stories,
election polls, sports events, share market prices, weather forecasts, global
events, festive celebrations, etc. is now easily accessible due to the continuous
progress of social and also to an extent, electronic media. The main advantage
of social media is that once a user connects to the internet, he has access to
a platform that is at once global and free. Modern-day devices like
smartphones, laptops, Bluetooth, WIFI-enabled cameras, etc. have made news
reporting much faster as compared to the previous forms of news communication.
The major functions of
media can be summed up as under:
(i)
Media
as a mass communicator is the most suitable and effective instrument to act as
a catalyst of social change;
(ii)
Media
can educate both, people and those in power about the need for change and
facilitate debate and discussion on the pros and cons of different measures
suggested for bringing it about and at the same time suggest such measures themselves.
(iii)
Media
can organize public opinion in support of the best of such measures and also
pursue them with political and administrative executives and keep constant
pressure on them to adopt and implement the same.
(iv)
Media
can monitor the performance and progress of the measures and expose the
inaction, inefficiency, negligence, waste and corruption in implementing them.
(v)
Media
is the best means to keep reminding people of their duties and responsibilities
for building the new society and exhorting them to discharge their obligations to
attain the goals.
(vi)
Media
can enlighten the people about difficulties and obstructions created by
national and international forces and vested interests in achieving progress
towards the goals by using various means and devices.[5]
(vii)
Media
can warn people of the dangers to national interests and guide them to redouble
their efforts.
(viii)
Media
makes democratic rule real and effective by acting as an intermediary between
people and the authorities. It informs the people of acts of omission and
commission of public administration and in turn, serves as the forum for
ventilating the grievances and aspirations of the people and for reaching them
to the concerned authorities.
(ix)
Being
the fourth organ of the estate, it is the responsibility of the media to help
in building the nation to implement the objectives of the Constitution and to
promote social justice and equality, stability and unity and peace, progress
and happiness for all. The list by no means is exhaustive because the reach of
each form of media has increased as compared to its predecessor. For instance,
debates, interviews, live coverages, etc. were possible only after electronic
media came into existence after print media and hence electronic media was
dutybound to responsibly conduct the same.
(x)
Likewise,
when social media got over, it gave freedom of expression a new meaning with
people finding themselves a new platform to make themselves heard. Thus, the functions
of media have increased with each step. Social scientists in general argue that
the media performs three basic functions namely reporting events,
interpretation of events and socialization. The ways these functions are
performed affect the course of both domestic and international politics. The
composite processes of gathering, evaluating, editing, producing and presenting
news are illustrative of the enormous salience of media in domestic and foreign
policy-making.[6]
2.2 DEFINITIONS
Some of the major terms that need to
be conceptualized for this study are as under:
2.2.1COMMUNICATION
Communication can be said
to be a two-way process of reaching a mutual understanding between two or more
persons through a medium in which participants exchange information, opinions
and views, news, ideas and feelings but also create and share the meaning of
this exchange of ideas. In general, communication is a means of connecting
people or places.[7]
Communication is a
process by which information is exchanged between individuals through a common
system of symbols, signs or behaviour. If the term is pluralized, the same
comes to mean a system for transmitting or exchanging information, i.e.
wireless electronic communications. In general, the word ‘communication’ refers
to people interacting in ways that at least one of the parties involved
understands as messages. [8]Thus,
a mutual transfer and exchange of information through a commonly understood
medium can be termed as ‘communication’. Personal communication may be between
two persons or more through a conversation, chat, etc. while public
communication may be between a larger group e.g. communication of news through
a news channel to the audience. In either case, the essence of communication
lies in sending information, thoughts or ideas from one side to the other and
being reciprocated with a response thereto.
2.2.2 MASS COMMUNICATION
Mass Communication
involves sharing ideas across a large audience either at a given point or
through an extended time frame and usually involves a professional
communicator. Mass communication includes newspapers, magazines, books, films,
television, radio and recordings. [9]Mass
communication is the technology-enabled process by which messages are sent to
large faraway audiences. [10]
Mass communication is a process in which a person, group of
people, or organisation sends a message through a communication channel to a
large group of anonymous and heterogeneous people and organisations. The sender
of the message is usually a professional communicator who often represents an
organization. Some of the major types of mass communication are: - Journalism,
such as news. - Political campaigning.[11]
2.2.3. JUDICIAL BASED REVIEW
Singh G. (2017) in her research titled “Role of
Freedom of Electronic Media in Indian Democracy” has worked on the research
question of whether the mischief of censorship has been correctly addressed by
the existing laws and legislations. Iyer Venkatesh B. (2017) in his research
titled “Study of the impact of the Internet and other media before print media”
has conducted the research with the following objectives, i.e.
1. To understand the present scenario of
print media in India specifically concerning the state of Gujarat.
2. To understand the evolution of print
media in India and analyse its current challenges
3. To understand the adaptation of print
media in the current competitive scenario
4. To study the readership behaviour of
consumers in Gujarat.
5. To study the consumer’s and
industry’s perceptions of newspapers about other media. Mittal AK (2016)
in his research “Trial by media and its impact upon judicial trial a
critical study” has undertaken research with the following objectives i.e.
to analyse the role of investigative Journalism in the social downfall or
enlistment, to judge the effects of judicial activism by media on the society
and Government machinery, to determine the subsequent effects of media trial on
the society, to access the pressure groups affecting the media activities, to
evaluate the legislative & constitutional provisions relating to electronics
media activities, to develop new legal concepts to tackle and control media
activities, to discover control mechanism to restrict media in fleshing wrong
news, to disclose the mystery of scams through electronic media & effecting
judicial approach Following were the research questions of the said research:
(a) What is the role of investigative
Journalism in social downfall or enlistment?
(b) What are the effects of judicial
activism by media on society and Government machinery?
(c) How determine the subsequent effects
of media trials on society?
(d) How does access to pressure groups affect
media activities?
(e) How to evaluate the legislative &
and constitutional provisions relating to electronic media activities?
(f) How to develop new legal concepts to
tackle and control media activities?
(g) How to discover a control mechanism
to restrict media from fleshing out wrong news?
(h) How to disclose the mystery of scams
through electronic media & and affect the judicial approach?
The research titled “Right to
freedom of speech and expression with special reference to decency and
morality” by Sen, Shameek (2016) has been made based on the
hypothesis that freedom of Speech and Expression is a sacrosanct Human Right
that needs protection in all its facets. Pre-censorship of any form leads to a
serious compromise of such rights.
Although there have been differences
between human rights systems on the necessity, extent and basis of imposition
of prior restrictions on speech owing to cultural specificities, there has been
an overall consensus on the need to minimise the imposition of any prior
restraint.
Apart from very specific situations
where it is necessary, mandatory pre-censorship of any form across all types of
media especially on grounds of obscenity should be largely done away with and
replaced by other forms of post facto imposition of liability.
The pre-censorship mechanism should
be replaced by a normative system of regulation based on scientifically
determinable parameters, and such regulation should be predominantly carried
out by stakeholders of the concerned sector of the media, rather than by the
state.
Another research has been conducted
to analyse the role of investigative Journalism in the social downfall or
enlistment, to judge the effects of judicial activism by media on the society
and Government machinery, to determine the subsequent effects of media trials
on society, to access the pressure groups affecting the media activities, to
evaluate the legislative & constitutional provisions relating to electronics
media activities, to develop new legal concepts to tackle and control media
activities, to discover control mechanism to restrict media in fleshing wrong
news, to disclose the mystery of scams through electronic media & effecting
judicial approach.[12]
The present research considers not only media trials but also the menace of
fake and paid news which have taken a rise as social and electronic media have
given new platforms for reaching out to the public.
ARTICLE 19(1)(A) AND PRINT MEDIA:
Print media which pertains to
communicating news, entertainment, advertisements and other information through
paper form in newspapers, magazines, tabloids, journals, etc. was the only
source of media during the initial years. As electronic media was not that
developed and social media was hardly in the picture, print media carried the
entire weightage of imparting all sorts of news across the nation. Being the
single source of communication, it gave birth to numerous issues from time and
again which were challenged in the Supreme Court. In the case of Srinivas
vs. the State of Madras,[13]
it was held that the freedom of speech and expression includes the liberty to
propagate not one’s views only. It also includes the right to propagate or
publish the views of other people. In the case of RomeshThapper vs. the State
of Madras,[14]
the circulation of the petitioner’s weekly journal was prohibited by the Madras
Government in their State by exercising powers u/s. 9 (1-A) of Maintenance of
Public Order Act 1949. It was held that the expression “freedom of speech and
expression” connotes also publication and thus the freedom of the press is
included in this category. Free propagation of ideas is the necessary objective
and this may be done on the platform or through press. The freedom of
propagation of ideas is secured by freedom of circulation.
Liberty of circulation is essential
to that freedom as the liberty of publication. Indeed, without circulation, the
publication would be of little value. The said law was held invalid as it
banned the entry and circulation of journals. Thus, the factor of circulation
was heavily harped upon in the judgment given in this case considering that
ideas through the press can be shared with one and all only by having liberty
of circulation failing which the ideas though available cannot be shared.
Liberty of circulation as well as liberty of publication of views and ideas
were equally important and absence of either of them would fail the purpose of
the entire structure itself.
CONCLUSION
Conclusion In this Article, the
researcher has attempted to study the freedom of speech and expression concerning
social and electronic media focusing mainly on the right of free speech in new
age social and electronic platforms as well as media’s misadventures by
indulging in media trials, sting operations and paid news. The research has
been done with the following objectives:
1.
To find if existing laws related to media in India are sufficient to deal
with media trials.
2.
To study the existing laws governing the media.
3.
To study the powers of regulatory bodies.
The present bodies and legislations
mainly aim at improving the current standards of news broadcast, compliance
with the code of conduct, maintaining standards of public taste, promoting the
interest of news broadcasters, and so on. However, no single body or
legislation has defined media trials, paid news, social media, sting
operations, etc. Considering this, such cases will be dealt with like any other
cases in available provisions and punished accordingly. However, considering
the gravity of the matter, it is suggested that an enactment is brought into
force that exclusively deals with such cases because they involve sensitive
issues of rights of media as against the rights of the accused, corruption and
purchase of airtime to broadcast news stories favouring a single political
party and privacy rights of suspicious persons by arranging for sting
operations. In Nov 2006, former Chief Justice of India Y K Sabharwal expressed
concern over the recent trend of media conducting ‘trial’ of cases before
courts pronounce judgments and said that “if this continues, there can’t be any
conviction. Judges are confused because the media has already given a verdict.”[15]Citing
pressure on the judiciary during the Nirbhaya rape case, Supreme Court Judge
Kurian Joseph said media trials in pending cases should be avoided and thereby
judges be saved of the enormous strain created by it. He further said that a
judge is expected to speak only through his judgment. While performing work as
a judge, if he comments on the bench, the media should not ever build upon
that. By doing such things the media will do a great service to the nation and
democracy.[16]
[1] Justice V.R. Krishna Iyer, “The
Regional Media and the Democratic Process” Pg. 26 (2008) Madras Law Journal 4
component of democratic government.
[2] ibid
[3] Jacob Rowbottom, Media Freedom and
Political Debate in the Digital Era, Pg. 491 (2006) 69(4) Modern Law Review
489-513
[4] Jacob Rowbottom, Media Freedom and
Political Debate in the Digital Era Pg. 492 (2006) 69(4) MLR 489-513
[5] Sawant P.B. “Tasks for a New
Society”, 3 Mainstream Nov. 20, 1999.
[6] Vora Batuk, “Media Manipulation: A
Fast-growing Business” Pg. 26 May 14, 1994, Mainstream
[7] www.businessdictionary.com/definition/communication.html
(Visited on April 26, 2017)
[9] Joseph Turow, Media Today – An
Introduction to Mass Communication7 (Routledge, 3rd Ed., 2009)
[10] Jean Folkerts and Stephen Lacy,
The Media in your Life – An Introduction to Mass Communication, 24(Pearson
Education, 2004)
[12] [Mittal AK “Trial by media and its
impact upon judicial trial a critical study” (2016)]
[13] AIR 1931 Madras 70
[15] Such is the force of media trial
that the judges who are yet to decide the case themselves feel the force of
media Available on
https://m.timesofindia.com/edit-page/Media-on-trial/articleshow/1460248.cms
(Visited on 15.1.2024)
[16] Supra Note 16
Article Information
ON FREEDOM OF SPEECH AND EXPRESSION CONCERNING SOCIAL AND ELECTRONIC MEDIA
Authors: MR. NIRUPAM BHATTACHARYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/24
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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