This article is written by Reet Balmiki, from NALSAR University of Law. This is an exhaustive article discussing the current regulation mechanism of the Indian press and its limitations along with the need for external regulation of the press.

Introduction 

“Freedom of the press is essential to the preservation of a democracy, but there is a difference between freedom and license.” 

-Franklin D. Roosevelt

In a pandemic-stricken world, the press has worked tirelessly to fulfill its pivotal role in keeping the public informed. They have worked around the clock, on the frontlines, risking their lives during these trying times to dispense essential information. The media, which is a watchdog in democracy, is also known as the fourth pillar of democracy. While the three branches of the government, the executive, the judiciary and the legislative, ensure the proper functioning of democracy and maintain the checks and balances, the media ensures transparency in social, economic, and political activities. It brings to light the true and harsh events of society and allows the public to form their views and opinions on the happenings. 

The Indian media, however, has been increasingly criticized for deviating from its role and objectives. Though the expansion of the media is desirable, many consider its increasing corporatization to be alarming. These concerns were further aggravated with the Indian media being eroded by the paid news syndrome, which undermines the basic confines of journalism. Additionally, the increasing media competition has resulted in reduced accuracy and credibility and has shifted the focus from providing information fairly and truly to a biased manner to increase viewership and profits. Such bias could feature due to the media house becoming an ambassador of a corporate group or political party or exaggeration to make the story more appealing or by publishing stories from unreliable sources. In this process, the media is forgetting and overlooking its social responsibility. 

Freedom of the press – the cornerstone of a democratic society 

In a democracy, it is the people who appoint the representatives to rule on their behalf and they have the right to know about the affairs of the elected government. The press has played a huge role as a public educator and has enabled transparency in the functioning of the government. In such a society where the press serves the purpose of advancing the public interest by praising and criticizing the government’s actions, the government likely imposes restrictions on the media to suppress such criticism. However, since open criticism is essential for the people to form their opinion and for the government to improve its functioning, the freedom of the press is protected and guaranteed under the Indian Constitution. 

Constitutional and judicial perspective

The freedom of the press is not explicitly mentioned in the Constitution. In the constituent assembly debates, Dr. Ambedkar resisted the special mention of freedom as he believed the press and an individual to be the same as far as the right to free speech was concerned. Therefore, the press has the same right as all other citizens and is subject to the same restrictions under the Constitution. 

The freedom of the press is a valuable and sacred right enshrined under Article 19(1)(a) of the Constitution. Hence, the press like all citizens has the right to express their views and opinions freely. The courts have also recognized the freedom of the press to be a part of freedom of speech and expression on several occasions. 

The court in Sakal Papers (P) Ltd. And Others vs The Union Of India (1961) observed that “Our Constitution does not expressly provide for the freedom of the press but it has been held by this Court that this freedom is included in “freedom of speech and expression” guaranteed by cl. (1)(a) of Art. 19.” Similarly,  in the case of Romesh Thapar v. State of Madras (1950), the Supreme Court held that “freedom of speech and the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.”

Scope and ambit of freedom of the press

In the Romesh Thapar case, it was observed that freedom of speech includes the freedom to propagate ideas. For propagating ideas, opinions, and other views, a citizen has the right to circulate them by either word of mouth or in writing. This extends the application of freedom to all modes of publication. In the recent case of Anuradha Bhasin vs Union Of India (2020), the Court analyzed the constitutionality of the internet shutdown and movement restrictions on the ability of journalists to travel and publish in Jammu and Kashmir. Further, the impact of the imposition of online communication and freedom of movement restrictions was analyzed. The Court, in this judgment, extended the application of Article 19 to the medium of the internet, thus extending the freedom of the press to all everything being said in articles, blogs, social media posts, etc.

However, the freedom of the press, like the freedom of speech, is not absolute and is subject to the restrictions under Article 19(2) of the Constitution. Therefore, the right under Article 19(1)(a) has certain exceptions which are limited on the grounds mentioned under Article 19(2). For imposing restrictions based on this Article, it is required that:

• The action must be sanctioned by law;
• The proposed action must be a reasonable restriction;
• Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or concerning contempt of court, defamation, or incitement to an offence.

The courts on various instances have observed that the freedom of speech, though not absolute, must be protected unless situations fall under the grounds of Article 19(2). Due to this reason, the court in Romesh Thapar observed that “very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realization that freedom of speech and the press lay at the foundation of all democratic organizations.”

Regulation of the press

The press in India is mostly self-regulating. The notion of self-regulation is that the media should be regulated by the press professional themselves. It means the media develops or creates a self-regulation mechanism independent from government control. They set out appropriate standards and codes of behaviour for the press to uphold their freedom of speech while monitoring and holding them accountable. The Media Self-Regulation Guidebook, Organization for Security and Co-operation in Europe, defines media self-regulation as “a joint endeavor by media professionals to set up voluntary editorial guidelines and abide by them in a learning process open to the public. By doing so, the independent media accept their share of responsibility for the quality of public discourse in the nation, while fully preserving their editorial autonomy in shaping it.”

Current regulation mechanism of the press 

While the press in India follows self-regulation, there exist statutory bodies for the regulation of the press by issuing standards that take the role of guidelines. These bodies aim to achieve a balance between the aspects of public interest and solving the issue of accountability of the press. During the 1975 emergency, the encroachment made by the government shook the foundation of democracy and gagged the press. Post the emergency period, self-regulation was adopted by restoring the Press Council of India (PCI) under the Press Council Act 1978. 

This statutory body was established “for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspapers and news agencies in India.” The main functions of the PCI are –

1. Helping newspapers maintain their independence.
2. Build a code of conduct for journalists and news agencies
3. Help maintain “high standards of public taste” and foster responsibility among citizens 
4. Review developments likely to restrict the flow of news.

The PCI has the power to receive and enquire into the complaints concerning ethical violations and professional misconduct. It has the power to summon witnesses and take evidence under oath, demand copies of public records to be submitted, even issue warnings, and so on. The decisions of the PCI cannot be appealed before a court and are considered final. 

However, the PCI has been severely criticized for being toothless due to the restrictions on its power. The PCI does not have the power to penalize the press for violation of the guidelines imposed by it. This means that though the press must follow these guidelines, there is no downside for them to not abide by them. This makes the enforcement of the guidelines difficult. Additionally, the PCI is also restricted in its jurisdiction as it enforces standards upon print media and cannot review electronic media like television and internet media. 

As the PCI governs the print media, the Central Board of Film Certification (CBFC) governs all content screened in theatres or broadcasted via television. However, the CBFC does not have the power to issue guidelines concerning standards of news and journalistic conduct. In addition to short films and documentaries, news channels are an important part of the media. They are governed by the News Broadcasters Association (NBA), which can warn, censure, and impose fines for the violation of the Code of Ethics. However, they lack the statutory power required to ensure the proper implementation of such guidelines and codes. This brings the need for proper self-regulation mechanisms that rightly balance the freedom of the press and their social responsibilities towards the people.

Need for external regulation

The press, the backbone of a democracy, has gained more popularity than ever in recent times. However, on several occasions, the press has diverted from its pertinent role of providing information in a scramble for more viewership. The line between news and advertising has blurred over time and this endangers the essence of democracy, a free and authentic press. 

With the prominent role and responsibilities of the media comes great influential power. Such power along with unsupervised freedom could lead to the misuse of the institution for promoting misinformation. Lack of supervision and accountability of the media can result in practices against the spirit of journalism. This also reduces the credibility of the media and risks people’s trust in democracy. Therefore, while the freedom of the press must be respected and protected, there is also a need for external regulation to ensure that media isn’t used as a tool to achieve ends against the principle of democracy. Due to the media’s powerful role and the current trend, the need for external regulation is increasingly echoing due to various reasons:

• The press acts as a watchdog of the three organs of the government and ensures that they perform their constitutional duties. In this manner, the press holds the government accountable for its actions on behalf of the citizens. 
• To ensure that the press while playing this crucial function does not unfairly take advantage of its role and the influence it has on the citizens, there must be a few ethics and guidelines overseeing its role. 
• The increasing corporatization and competition among the press, along with its expansion to social media and the internet, calls for an urgent need for external regulation. 
• While print media is reviewed and regulated by the Press Council of India, television channels and modes of electronic media remain unregulated. 
• To ensure that the media provide a free flow of accurate and credible news to serve the interest of the people. The spread of fake news may harm the reputation of a person or a community as well as result in a loss of credibility and trust in the media.
• To curb the spread of yellow journalism and ensure the spread of mere truth. Yellow journalism is a wide term and includes sensationalism, gossips, scandals, misinformation, and over-exaggeration to distort or twist the news. 
• To subdue the recent spike in paid news has resulted in bias and reduces the independence of the press. The press provides favourable treatment to institutions that have paid for the news. Here, the news is an advertisement without the “ad tag.” This is a serious malpractice as it deceives the public by manipulating the actual news.
• To keep a check that the press covers the significant news concerning socio-economic issues. The recent scramble for television rating points (TRPs) has resulted in the press covering popular matters like activities of film stars, cricketers, etc while leaving out important issues that the people should be aware of.
• Though freedom of expression is a fundamental right, the spread of hate speech against a person or group through the emergence of multiple platforms for dissenting hate must be countered. It is necessary to ensure that the press follows basic ethics and is aware of the responsibilities and social implications that come with a free press. 
• The media interference in judicial matters is not unheard of. The media often comment on ongoing cases and present their implementation of the facts. This is known as investigative journalism. Such news often influences the people and judges by creating a  perception of innocence or guilt. This is known as “trial by media” and impacts the person’s reputation or the verdict of the judgment. Such abuse of the influential power by the press must be kept under check to ensure a fair trial by the judiciary. 

Limitations of self-regulation by the press

The propagation of recent trends like yellow journalism, hate speech, media trials, fake news, etc highlight the shortcomings of the current system of self-regulation by the press. There exist several limitations in this system, these are-

• The PCI drafted the Norms of Journalist Conduct as required under Section 13(2)(b) of the Press Council Act 1978. However, due to the lack of statutory backing in the implementation of the Code, it is considered a moral obligation and is followed by a few conscious journalists favouring self-regulation. 
• The challenges in enforcement have resulted in several ethical violations and the spread of misinformation. 
• The Act does not empower the Council to enforce its orders and directions. The non-execution of orders restricts the Council from mandating self-regulation by agencies refusing to follow the issued norms. Due to this, the very object of regulating journalistic practices and standards is not served.
• The risk of industries subverting regulatory goals with their business goals undermines the basis of self-regulation. 
• Though the press performs a public function and has social responsibilities, it is still a private entity. The private nature of self-regulation may overlook the needs of the public or the pivotal role of the press in a democracy. 
• The press may be unwilling to invest the resources or may lack the power to ensure proper self-regulation and enforce corrective sanctions. 
• There is also a lack of incentive to monitor and enforce sanctions to ensure self-regulation. 
• A self-regulator may likely ignore their duty if the long-term gain of doing so outweighs the present loss incurred.
• The lack of proper and equal enforcement of self-regulation puts those who abide by the norms at a disadvantage. This reduces the chances of implementation of such a process due to the possibility of incurring loss or reduction in profits. 

Conclusion

“The sole aim of journalism should be service. The newspaper is a great power, but just as an unchained torrent of water submerges the whole countryside and devastates crops, even so, an uncontrolled pen serves but to destroy.“

-Mahatma Gandhi.

Over the years, the Indian press has continued to gain more importance and has grown stronger. The role of a free press in a democracy is crucial and is well-protected under the Indian Constitution. However, considering the risk of absolute power lying with an unchecked press and observing the recent dangerous trends set by the Indian press, the need for external regulation is emerging along with the increased importance of the press. 

With the emergence of newer modes of media, the reach of the press has expanded. This increases its power and simultaneously, its social responsibilities. To uphold the freedom of the press while restraining its actions to its constitutional role, there is an urgent need for a proper external regulatory body to maintain the balance. The current mechanisms, though empowering, are futile due to the restrictions imposed on the statutory bodies. Thus, there is a need to enforce and implement mechanisms that enable a free press to perform its democratic functions. 

References

• https://presscouncil.nic.in/OldWebsite/history.htm
• https://poseidon01.ssrn.com/delivery.php?ID=468065099084000022003001096012121074002033009058089053073090099071090010069069125090056119012045118056006022024020065029114112050004033058059086027030087118074095011047082044026125098031022088006110107116104110015025070090107123065007082119006027028100&EXT=pdf&INDEX=TRUE
• https://www.thehindu.com/opinion/lead/freedom-of-the-press-and-journalistic-ethics/article2071551.ece
• https://shodhganga.inflibnet.ac.in/bitstream/10603/235865/13/12%20chapter%205.pdf

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