This article is written by Rajat Chawda of the Institute of Law, Nirma University. In this article, he explains how media channels are deviating from their role as the fourth estate of democracy and what are the rules and regulations to control such deviations.
Media and other news agencies are considered as a mediator between the government and the citizens. They act as a medium to inform the citizens about the working of the institutions of the state. When the news channels carry out their job diligently, then the government’s accountability towards the citizens increases. As the citizens become more aware of the acts and omissions of the government through news channels, the government cannot become negligent of its role and responsibilities towards the public and have to make decisions carefully as the people will be more critical and sceptical of the government.
In this article, the author will try to explain the various instances through which the mainstream news channels are deviating from their duty as the fourth pillar of democracy. The issue of media trial will also be covered and how this jeopardizes the rights of the accused. Light will also be shaded on the various statutory and non-statutory authorities, framing various rules and responsibilities for the conduct of news channels which are not properly adhered to.
Media as the Fourth Estate of Democracy
Media holds a crucial role in recognizing the strength and importance of the democracy. India is a unique country that is, the home of more than 125 crore people of different castes, classes, religion, and occupations. In such vast diversity, existence independent, unbiased, and powerful media is of utmost importance for the survival of democracy in the sub-continent.
Freedom of media is guaranteed under Article 19(2) of the Constitution of India, which guarantees the freedom of speech and expression. One of the major reasons for providing independence to the media was to create a fourth estate outside the three settled bodies: Legislative, Executive, and Judiciary. The press, by exercising this right from time to time, publish facts and opinions to make the people aware of the decisions taken by the government. Media helps to keep an individual updated of the national and international occurrences, which may directly or indirectly impact their life.
This freedom guaranteed to the press is an essential one from the inception of the constitution. From time and again, the Supreme Court has recognized, stated, and restated that the freedom of speech and expression to the media is of prime importance to parliamentary democracy. The courts have annulled the legislation which tries to restrain the freedom of the press, as it is imperative for the system.
Currently, the freedom of the press is not absolute, and it can be restricted; the following conditions are essential to curb the freedom of press:
- There is an authority of law to restrict such freedom. The freedom of the press cannot be curtailed by executive orders or administrative instructions, which lacks the sanction of law.
- The law legislated to impose the restriction must satisfy one or more overheads specified under Article 19(2) of the Constitution of India. Only the overheads mentioned under Article 19(2) can be interpreted to impose such restrictions. No restriction can be imposed on freedom of the press on omnibus grounds such as the ‘in the interests of the general public.’
- The restriction should be reasonable & justifiable and not excessive. The validity of the restrictions imposed can be scrutinized by the judiciary.
In the landmark case of Sakal Papers (P) Ltd v. Union of India, the court held that Article 19(2) of the Constitution permits the imposition of restrictions that are reasonable under the heads of this article and no other ground. The freedom of the press cannot be curtailed, like the freedom to carry on business, in the interest of the general public.
The following are the broad purposes which the freedom of expression aims to serve:
- To help an individual to attain self-fulfilment.
- To assist in the discovery of truth.
- To strengthen the capacity of an individual participating in the decision-making process.
- To provide a mechanism by which it is possible to establish a balance between stability and social change.
Restriction to the Freedom of Speech
Article 19(2) of the Constitution of India contains some grounds where the exercise of the right of freedom of speech and expression can be restricted.
Decency and Morality
When the information published can hamper the decency and morality attached to society, then the freedom of speech and expression can be curbed. In such matters, the Court does not reflect contemporary standards and perception, but they demonstrate to do so. ‘Obscenity,’ ‘indecency,’ and ‘immorality’ are equivocal concepts, and their standards vary from one society to another. The term ‘obscenity’ is very ambiguous as the court is still not able to define what is specifically meant by obscenity. Therefore, it is settled that obscenity is subjective, like what beauty lies in the eye of the beholder. Sections 292–294 of the IPC deals with restrictions based on morality and decency. For example, vulgarity and use of strong erotic language in public is considered to be tabboed. It is considered synonymous with obscenity in India.
Section 499 of IPC defines criminal defamation as the statements which injure a man’s reputation in the society. Civil defamation is not codified in Indian law, and the decisions are therefore based on common law judgments. Laws regarding libel can have a chilling effect on the freedom of speech and expression of the media. Therefore a balance needs to be made while implementing such laws. It was stated in the case of R Rajagopal v. State of T.N. that, it cannot be made possible that debate in a democracy can be free from erroneously made decisions, therefore, no liability will arise when a defamatory statement is made erroneously unless there seems malice on the part of the speaker to make such statements.
Contempt of Court
This is another restriction on freedom of expression and freedom of the press. The constitutional validity of the Contempt of Courts Act, 1952 (amended with the Act of 1971), was challenged that it infringed the freedom of the press in the case of C.K. Daphtary v. O.P. Gupta. In this case, the court held that the Contempt of Courts Act, 1952 does not infringe the freedom of speech as it does not impose unreasonable restrictions and, therefore, is saved under Article 19(2).
In the case of Rao Harnarain v. Gurmori Ram, the Punjab High Court upheld that the liberty of the press is necessary for parliamentary democracy, but it is subordinate to the proper administration of justice. A reporter must report and not adjudicate the case.
How are news channels deviating from their duties?
In recent years the media and the majority of the news channels have entirely deviated from their responsibility as the fourth estate of democracy. Although there has been an increase in the number of news channels demonstrating to cater to the public by providing them information, there is a decrease in the public sphere or involvement of the public in these news channels. This decrease is resulting in the rise of elitist and socially conservative values. In the contemporary time, the quality of public discourse has been lowered by the mainstream media players.
It is hard to deny that most of the media journalists are acting as the mouthpiece of the party in power. This statement can be backed by the fact that owners of such corporate media houses share a close link with the government, and therefore, one will not want to speak against their partners. It can also be seen that rarely a healthy discourse takes place on highly important public issues like the beef ban, the issue of Kashmir, the protection of freedom of speech in universities, the still prevailing caste-system in the society. Issues like this have received little or no attention from news channels at all.
India ranks badly on the World Freedom of Press Index with a rank of 142 out of 180 countries. This rank has been decreasing consistently in recent years. This rank shows that Indian news channels are not free anymore. They are either directly influenced by the party in power or indirectly controlled by the affluent class because of borrowings by the channels or through board memberships. This controlling hinders the freedom of speech and expression of the press, and the government’s action is not properly addressed and thereby decreasing the government’s accountability towards the citizens. With less attention of the media on the government; the government can easily indulge in, tweaking of data. This whole results in opacity in a democratically elected government, which was supposed to be transparent to the public. Over the years, it can also be seen that media houses are used by the party in power, as a propaganda tool to promote their schemes. This is completely unfair and against the principles of free speech guaranteed by the constitution.
Another reason is the competition of TRP amongst various news channels. To become the most viewed channel in the media industry, nowadays, the role of a news channel has deviated from information providers to an entertainment channel. No importance is given to ground level news, fact-checking, relevant information. News channels run different sorts of entertainment gibberish, which can attract viewership so that the channel can remain in the competition. Often, news channel telecasts, astrology shows, information regarding daily soaps or debates where speakers shout in an inhumane way. Such kinds of shows gain terrific viewership, and therefore, media personnel also do not pay attention to actual news and just emphasize on these to churn out money. Briefly, it can be said that most of the news provided by news channels does not make sense; rather, they are based on sensation.
The Problem of Media Trial
Media holds a lot of potential power to mobilize the citizens and impact their choices and interests. In such usage of power, news channels circulate biased information or not from a piece of credible information. Such information creates a problem for the justice delivery system, and therefore, appropriate checks should be placed to control the flow of such information in public.
For example, A person is being charged for the offence of murder, and the prosecution has been started against him. If the media runs this news brandishing the accused as a murderer based on their opinion, it will mobilize the public opinion and interference with the justice delivery system by jeopardizing the rights of the accused and the complete trial which was going against him. Such acts are against the settled principle of presumption of innocence of the accused as per which no one should be considered as guilty until proven otherwise.
The risk of conviction or punishment that a criminally accused face at trial is called jeopardy. In a trial, a judicial examination of evidence and determination of legal rights takes place. In a trial, a settled rule of law is given more importance than any other thing. A trial by media can influence this judicial trial by influencing the opinion of judges, which can risk the fairness of the trial. It should be noted that this restriction to media trial with interference to the administration of justice is neither permissible nor an unreasonable restriction placed before the media. In the case of M.P.Lohia vs. State Of West Bengal & Anr, whereby a woman committed suicide due to harassment for dowry, and the court refused to grant anticipatory bail to the accused persons. While the special leave petition was still pending before the Supreme Court, an article was published about the incident, which has covered extensively the details and material facts of the case, which would come out on the later stage of the trial. The Court considered such publication of such material as an interference with the administration of justice and discouraged such practices by the media houses and cautioned them about the trial by media in matters still sub-judice.
From the above case, it should become clear that though free speech is essential to parliamentary democracy, it cannot be exercised alone. Rights and duties are correlatives, meaning they cannot exist alone. Therefore, when the media has the right to freedom of speech, there are also some duties placed which are to be adhered to by all. One must not in the exercise of his rights to forget his duties and also the restrictions to such rights. Freedom of the press also comes within the implied meaning of restrictions as so in the constitution. With the rights so offered to the citizens, a striking balance has been achieved by putting the weight of the restrictions on the constitution.
Since the exercise of this right by the media can create a lot of trouble for an accused person, this right should be used judiciously and rationally. An internal mechanism should be developed by every media personnel to prevent the publication of such sensitive material, which has the potential to disrepute the judiciary and interfere with the administration of justice. To run behind cases to make them trending and sensationalism should be curbed and the publishers and other media personnel can not hide behind the veil of defence that was not aware of such contemptuous interference of the publication or that it was done in haste.
A free and independent media and judicial system are necessary and indispensable for the rule of law and order in the society, and therefore, both need to be protected.
The judgments of the court are part of the public document and can be analyzed, criticized, and commented upon, but this needs to happen in a dignified manner. No scurrilous remarks can be cast out, and the credibility of the judge cannot be questioned at all.
Infringement of Rights of the Accused
Every party to a trial, whether civil or criminal, has a right to privacy to maintain concerning the pending dispute. When a trial goes under media surveillance, it impacts the trial in two ways:
- It increases the consciousness of the public with the issues involved in the case.
- The mass publication of the issue leads to the formulation of different opinions regarding the same dispute.
In the landmark case of the People v. OJ Simpson, whereby every stage of the trial was covered by the media, which resulted in difficulties for the department of justice to deliver justice in forms of delay. This is the best case to demonstrate that publishing the details of a trial may serve the public interest but may cause administrative difficulties for the delivery of justice and a fair trial to the accused.
The principle of the Latin maxim ‘Nemo Debet Bis Vexari’ can be found in Article 20(2) of the Constitution of India, which provides for the double jeopardy principle. As per this principle, no person can be put twice on trial for the commission of the same offence. If a second trial is initiated against him, the defence can be taken of acquittal or conviction of the first trial. Apart from the protection guaranteed by this article, there is Section 300 of the Criminal Procedure Code, 1973, which provides the same protection whereby no person shall be subjected to any punishment or be tried for a single act more than once, if after following the due process and by a competent court. Therefore, it is necessary to clarify that the trial by media is not a judicial trial and therefore, the opinion and conscience formed by the extensive publication of material facts attached to a particular case will deeply affect the judicial trial and this will be violative of the fundamental rights of the accused.
Regulation of Media
Till now, it should become clear that the media plays an important role in making the democratic institution more effective and transparent. It is the duty or the obligation of the media personnel to provide correct and credible information to the public; so that the public, in turn, can ask appropriate questions to their representative. Therefore, appropriate legislation is required to control the media from deviating from their duties.
It would not be a surprise to know that the media in India is mostly self-regulated (to ensure that they have the adequate exercise of their freedom of speech and expression, free from any sort of hegemony). There are two main bodies to regulate the media:
- Press Council of India: A statutory body.
- News Broadcasting and Standards Authority of India: A self-regulatory organization.
The role of both these institutions is to issue standards that are considered as more of a guideline and not binding.
Press Council of India
To preserve freedom of the press and of maintaining and improving standards of newspapers and news agencies in India, the Press Council of India (PCI) was established under the PCI Act of 1978.
The Council consists of a chairman and 28 other members. The Speaker of the Lok Sabha, the Chairman of the Rajya Sabha, and a member elected by the PCI are responsible for the selection of the Chairman of the PCI. Other members of the PCI includes three members of Lok Sabha, two members of Rajya Sabha, sex editors of newspapers, seven working journalists other than editors of newspapers, six persons in the business of managing newspapers, one person who is engaged in the business of managing news agencies, and three persons with special knowledge of public life.
To maintain the independence of newspapers, building a code of conduct for journalists and news agencies, maintaining “high standards of public taste” and fostering responsibility among citizens; and observing developments likely to restrict the flow of news are some of the tasks which are undertaken by the Press Council of India.
The Council has the power to receive complaints of violation of journalistic ethics or professional misconduct by an editor or journalist. On receiving a complaint, the PCI is responsible for inquiring about it. Just like a court of law, the Council has the power to summon witnesses, take evidence on oath, demand copies of public records to be submitted; it can also issue warnings and admonish a newspaper. It also has the power to order any newspaper to publish the details of the inquiry. Decisions taken by the Council shall be final and cannot be appealed before a court of law.
There are two limitations attached to the functioning of PCI:
- The PCI only overviews the functioning of press media. It can only monitor the regulation of newspapers, journals, magazines, and other forms of print media. Media forms like television channels and radio cannot be regulated by the PCI.
- The PCI can only enforce the guidelines issued. It cannot penalize any media personnel for violation of such guidelines.
Other Regulation Forums
The task to regulate the electronic media in India is undertaken by the following bodies:
Central Board of Film Certification (CBFC)
Its role is limited to control the content of movies and television shows. Sanction of CBFC is mandatorily required for screening films, inclusive of short films, documentaries, television shows, and advertisements in theatres or broadcasting via television.
The CBFC does not have the power to issue guidelines relating to the standards of news and journalistic conduct, just like the PCI.
Cable Television Networks (Regulation) Act, 1995
This Act undertakes the task to formulate Program and Advertisement for regulating content broadcast on the television. If any program which violates this Code is broadcasted, the District Magistrate is empowered under this Act to seize the equipment of the cable operator who broadcasted such a program. The same Program and Advertising Codes have to be observed by the radio channels. This obligation to follow the Code is made compulsory as part of the license agreement. The license agreement also includes certain standards which the broadcasting content should adhere to. Violation of such standards may lead to suspension or revocation of license.
In case the content is broadcasted on the internet, certain standards have been prescribed for the content to access from the internet under I.T. Rules, 2011. In such cases, there exists no regulatory body like PCI or CBFC, and the specific complaint can be addressed to the internet provider or the host.
Self-Regulation by T.V. Channels
Most of the news channels have come to arrangements by way of the agreements amongst themselves to self-regulate their conduct. In light of such agreements, bodies like the National Broadcasters Association (NBA) have been established, which have formulated a certain Code of Ethics to regulate the content to be broadcasted on the television.
The News Broadcasting Standards Authority (NBSA), a part of the NBA, is empowered to warn, admonish, censure, express disapproval, and fine the broadcaster a sum up to Rs 1 lakh for violation of the Code. A similar organization is the Broadcast Editors Association. The guidelines for the content of advertisements are drawn by the Advertising Standards Council of India. These groups do not have any statutory power at all and are the only outcome of agreements, as stated earlier.
These are some bodies which regulate the content broadcasting on media.
It should be understood that the media holds an enormous potential power to mobilize the citizens and use them as its puppets. The reason for granting such enormous power to the media personnel is because of the constitutional and moral trust, which the media holds as the fourth pillar of democracy. The media acts as a custodian of the public. It serves the public interest in a pluralistic democracy by expressing and disseminating expressions and opinions of all persons. This is the primary reason which differentiates the press of freedom from the content and ambit of any other freedom guaranteed by the constitution. Therefore, it is the public function that the media undertakes to perform and should exercise this function with the fullest sense of responsibility.
The current condition of the media is very saddening, whereby every incident or news is tried to give it a communal angle or news is circulated without conducting any background check. The consequences of such news are the misinformed citizens who are more vulnerable than an uninformed citizen. Any democracy will thrive only when the media; it’s the fourth pillar is critical of the incidents all the time. When the media questions every decision and information of the government, the accountability of the government increases as they will remain 24×7 under the surveillance of the media. Hence, to make this democratic institution successful, the role of the media should be revamped and realized again.
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