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Right To Freedom Of Speech And Expression ; Legal And Ethical Checks And Balances On Media

Manisha T. Karia
2 May 2020 6:48 AM GMT
Right To Freedom Of Speech And Expression ; Legal And Ethical Checks And Balances On Media
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Media is the most powerful platform to express 'right to freedom of speech and expression under our Constitution. Since 1950, starting from cases like Romesh Thapar (1950 SCR 594), the Supreme Court has held that freedom of speech and expression guaranteed to all citizens by Article 19 (1) (a) of Constitution of India includes freedom of the press. The liberty of the press stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the press as such or as distinct from the freedom of the citizens.

The Supreme Court while hearing a writ petition concerning grievances of migrant labourers vide order dated 31 March 2020 observed about the spread of the fake news that "We expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours ......"

Since the spread of Covid-19 and imposition of lockdown; circulation of fake news and misleading messages have increased, it has become unbearable to watch manipulative news and messages, as said 'we are not just fighting pandemic; we are fighting an infodemic'.

The right to freedom of speech comes with responsibilities and self imposed restrictions. Any restriction on the free speech affects the very essence of democracy. Unfortunately, forgetting the representative role and being the voice of the people, the news/posts/statements are manipulated and sensationalized with an element of falsity, to maximize viewership and profit. The wrong, biased and unfair news reporting diverts the attention of the people from important issues.

In words of Nani Palkhivala, 'Journalism is not a business; it is a profession and professional should be ready to accept standards'. History is full of eminent journalists and they are real thread to connect with society and shaping the media. Aino Suhola, Seppo Turunen and Markku Varis in textbook named "Principles of Journalistic Work", has well described journalist as "You are a reporter, not a star. You are a servant of the people, not a ruler. You are a seeker of knowledge, not its guardian. You know people, but you are not everyone's friend. You are there, but not seen – you are a shadow. You are present, but you are not the object of the piece of news, nor the one something is happening to. You are not the protagonist of the news article. You do a profession which is mundane work. You are a professional, according to whose information the majority of us construct our world view."

In today's technologically advanced world, many of us are more active than any well-trained journalist by having easy access to social media at our fingertips. Are we, behaving responsibly while acting as 'citizen journalists' ? Social media is a great tool available to all of us to contribute constructively and need to be used with greater responsibility as true voice of people. Citizen must be extra cautious to verify the information received before uploading, posting or forwarding it.

The Supreme Court, in Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294 has observed: (SCC p. 317, para 38) "[O]ne-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. … Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions." In Express Newspapers (Bombay) (P) Ltd. v. Union of India, the court held :"Freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale, particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers are purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities."

Apart from constitutional restrictions under Article 19(2) of the Constitution, such as (i) The sovereignty and integrity of India; (ii) The security of the State; (iii) Friendly relations with foreign States; (iv) Public order; (v) Decency or morality; (vi) In relation to contempt of court; (vii) Defamation or/ and; (viii) Incitement to an offence, on freedom of speech and expression, there are other laws which also limit press freedom and citizen's right to information and freedom of speech and expression including:

  1. Several provisions of the Indian Penal Code, 1860 under which offences can be registered.
  2. The Press and Registration of Books Act, 1867 (oldest surviving Act) a fundamental law governing the publication of newspapers and printing presses.
  3. The Indian telegraph Act, 1985 which empowers the state to intercept, detain, or not to transmit any message, in the interest of public safety, public order, the sovereignty & integrity, and security of the state.
  4. Indian Post Office Act, 1898 which gives the state or its representatives the right to intercept, detain or not to send any indecent or obscene publications or representations.
  5. The Police incitement to Disaffection Act, 1922, which provides for a penalty for spreading disaffection among the police and for related offences.
  6. The Official Secrets Act, 1923, which prohibits obtaining, collecting, recording or publishing of secret government documents or photographs or sketches or models, the Security and Public Safety Acts of the various States which deal with penalties for inciting commission of 'subversive' acts.
  7. The Drugs and Magic Remedies Objectionable Advertisements Act, 1954, which, in the interests of public health, bans advertisements of magic cures of sexual ailments and the like.
  8. The Young Persons Harmful Publications Act, 1956 disallows publication and circulation of any literature likely to encourage anti-social tendencies among children.
  9. The Copyright Act, 1957, protects the original works of writers, artists, musicians, dramatist, film and video producers and other creative persons from being pirated.
  10. Section 11 of the Customs Act, 1962 which gives Government the power to ban import and export of goods in the interests of security, public order, and decency and morality.
  11. The Contempt of Courts Act, 1971 relates to the wilful disobedience of judicial orders and the like, and to any publication which interferes with or undermines the administration of justice.
  12. The Press Council of India was established under Press Council Act, 1978 for preserving the freedom of the press and of maintaining and improving the standards of newspapers and news agencies in India.

  1. The Cable Television Networks Regulation Act, 1994, aimed to ensure the growing cable TV industry was regulated with a program code and an advertising code that gave the government the power to stop cable transmissions.
  2. The Information Technology Act, 2000, Section 67 provides punishment for publishing or transmitting obscene material in electronic form (amended in 2008) and Section 66 A provides punishment for sending offensive messages through communication service etc. (introduced in 2008)

In a democratic society, Media to be regulated by ethics and self regulations. Many professional bodies have formulated voluntary codes of conduct for self-regulation. Following self-regulatory bodies are in existence in India:

  1. All India Newspaper Editor's Conference ("AINEC"), the code of ethics are applicable to the members of that body.
  2. The Office of the Registrar of Newspapers for India established in 1956 ("RNI"), provides the duties and functions of the RNI both statutory as well as some non-statutory functions.
  3. Audit Bureau of Circulations (ABC) founded in 1948 is a not-for-profit, voluntary organisation consisting of publishers, advertisers and advertising agencies as members. ABC's primary objective is to arrive at and certify authentic circulation figures representing Net Paid Sales of member publications and disseminate the data for the use of space buyers.
  4. The Telecom Regulatory Authority of India (TRAI), the Ministry of Information and Broadcasting, as well as TRAI, issues policy guidelines from time to time.
  5. The Broadcasting Content Complaints Council (BCCC), the grievance redressal mechanism created under the Indian Broadcasting Federation (IBF), can take if its guidelines are defied is refer the complaint to the Information and Broadcasting Ministry.
  6. The jurisdiction of the News Broadcasting Standards Authority (NBSA) is restricted only to members, which signifies that it is powerless when it comes to violation of content regulation by non-members of NBSA.

Sadly the current self-regulation as state regulation mechanisms lack uniformity, predictability and enforceability.

Along with free speech, every individual also have right to receive true and correct information and this right is mainly sourced to media. As per the world press freedom Index 2019, India's freedom of press ranking has further gone down to 140th place this is mainly due to recent increase in censorship, attacks and deaths of the journalists, sudden bans and restrictions on media. In a diverse country like ours, criticism need to be objective and rational and the government should also be open to criticisms in the interest of democracy. In current scenario, there is need for legal and ethical checks and balances for free and constructive media. We also need to understand that there is no freedom to destroy freedom.

Views Are Personal Only

(Author is Advocate on Record in the Supreme Court of India)

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