Introduction:
Media is an instrument for storing and communicating a wide range of information through newspapers, magazines, radio, television, and the internet. It is considered the fourth limb of the Indian democracy. The primary objective is to act as the watchdog and communicate the decisions taken by the Legislature, Executive, and Judiciary to the general public. It has to operate within the constitutional framework and act in the national interest, and it is not above the law. It is also important to ensure a balance between the freedom of the press and restrictions on the press. This is achieved through Media Laws which is an umbrella term for all kinds of media regulations and coexists with various other fields of law, such as copyright, contempt, and defamation.
Pre-Independence Era
Through the ‘Proclamation of Queen Victoria (1858)’, the colonial rule firmly established itself in India and the concept of liberty of press completely ceased to exist. The ‘Kautilya Arthashastra’ and ‘Waqaya Navis’ were previously referred to for regulating the circulation of information about state affairs. There was no concept of pre-censorship or licensing of press information before the colonial laws were imposed. The ‘Bengal Gazette’ was the first typographic press in India, started by J. A. Hickey in 1780. It exposed the injustice committed by the E.I.C. on Indians. It soon went into flames through media regulations imposing hefty fines and imprisonment to Hickey.
The ‘Madras Courier’ was the first press in Madras that scrutinized the military actions of the colonial rulers and became the first press to be suppressed by a Pre-Censorship Rule (1795), where all their publications were sent for inspection before publishing. The infringement of this new law resulted in the deportation of the publishers of the press. However, in 1818 the pre-censorship laws were completely abolished due to aristocratic pressure on the colonial rulers. This led to the emergence of ‘Samachar Darpan’ carrying news in both Bengali and English. In 1823, a new regulation was circulated restricting connections of any servants of the Crown with any press. It also gave ownership of the press to the Council of Governor entirely.
The ‘Metcalfe Act, 1830’ was enacted as full-fledged law for controlling the printing and publishing of newspapers within the territory of colonial India. This was later replaced by the Indian Penal Code, 1860 after the ‘Revolt of 1857’ happened. Defamation became a punishable offense and was imposed on almost every writer, editor, or publisher of the Indian press who circulated the information of the Indian Independence Movements. The ‘Press and Registration of Books Act, 1867’ was also enacted to regulate the press periodically. This law is still in force. In 1870, the ‘Sedition law’ was enforced through IPC Section 124-A which sent various freedom fighters and Indian journalists of ‘Swarajya Pess’ into illegal detentions. Freedom of the press was again curbed.
The ‘Vernacular Press Act, 1878’ was enacted to curb the Indian language press. It empowered colonial police authorities to forfeit, suppress, or confiscate any news material during the pre-censorship scrutiny of the media content. The press had no right to approach any Court of Law for the injustice. The ‘Indian Telegraph Act, 1885’ was enacted to empower the colonial government for granting licenses to all kinds of press before its circulation. This was enforced with the ‘Indian Post Office Act, 1898’ and the ‘Sea Customs Act’ which empowered colonial officials to restrict transportation, imports, and exports of media content. This era was witnessing the prime of press restrictions since the colonial rule had begun.
The ‘Newspapers (Incitement of Offences) Act, 1908’ and the ‘Press Act, 1910’ conferred powers on the colonial authorities to confiscate and take action against editors of any vernacular press who published anything in favor of the ‘Swadeshi Movement’. Additionally, the ‘Official Secrets Act, 1923’ was enacted which declared the publishing of state affairs as wrongful communication of information. There was a huge turn of the tide in 1930 when Civil Disobedience Movement gave strength to millions of Indian journalists and freedom fighters. The ‘Indian Press (Emergency Powers) Act, 1931’ was enacted which made participation in the movement through print media a punishable offense.
The ‘Foreign Relations Act, 1932’ was enacted to restrict and punish publication of any information causing prejudice to cordial relations between the British Crown and other foreign states. Circulation of information outside of colonial India was hence controlled as far as possible.
Post Independence Era
The Indian National Congress came to power in 1947, declaring India an independent state. The ‘Press Law Enquiry Committee, 1947’ was set up to examine and give recommendations on the existing media law. The ‘Indian Press (Emergency Powers) Act, 1931’ and ‘Foreign Relations Act, 1932’ were repealed, and modifications were made to Section 124-A of IPC. The ‘Telegraph Act, 1885’ and ‘Post Office Act, 1898’ were amended. The ‘Press (Objectionable Matters) Act, 1951’ was enacted to control the press moderately, but it was repealed in 1957. The ‘Press Commission of India, 1952’ was established which led to the development of the ‘Press Council of India’.
The ‘Press Trust of India, 1949’ was established by the Indian and Eastern Newspaper Society to form independent news agencies. The ‘Newspaper (Price and Page) Act, 1956’ was enacted to prevent unfair competition through price regulations on the press. The newspaper could not increase its volume of publication without raising its price. The Supreme Court declared it unconstitutional in the landmark judgment of Sakal Papers vs Union of India [AIR 1962 SC 305]. It held that the government could only impose indirect restrictions on the freedom of the press on the grounds under Article 19(2).
However, this freedom of the press was short-lived. In June 1975, the National Emergency was proclaimed leading to the introduction of censorship laws in independent India. The ‘Prevention of Publication of Objectionable Matter Act, 1976’, the ‘Parliamentary Proceedings (Protection of Publication) Repeal Act, 1976’, and the ‘Press Council (Repeal) Act, 1976’ were enacted to deny press the access to justice by the procedure established by law against their illegal detentions. The Ministry of Information and Broadcasting monitored almost every press publication and penalized journalists accordingly. In 1977, the national emergency was lifted and there was moderate regulation on the press in India.
The Present Position of Media Law in India
The freedom of the press is guaranteed under the Preamble of the Constitution of India as ‘Liberty of thoughts and expressions’ read with Article 19(1) (a) of the Part 3rd. It is subject to reasonable restrictions only on the grounds provided under Article 19(2). Various landmark judgments have highlighted the freedom of the press as a fundamental part of our democracy; a few of them are as follows:
Grounds of Restriction
- Romesh Thappar vs State of Madras [AIR 1950 SC 124]
The Court struck down a provision of the Madras Maintenance of Public Order Act, 1949 which imposed a ban on the circulation of petitioner’s news journals for securing public order. It held that the right to free speech of the press is fundamental and cannot be curtailed on any other ground apart from those under Article 19(2). - Brij Bhushan vs State of Delhi [AIR 1950 SC 129]
Certain provisions of the East Punjab Safety Act, 1949 authorized restrictions on freedom of the press on grounds of maintaining public order which was not a part of Article 19(2). The Court held it to be unconstitutional and quashed the pre-censorship order passed against the petitioner’s newspaper.
Right to Circulation
Benette Coleman & Co. vs Union of India [AIR 1973 SC 106]
The constitutional validity of the Newspaper (Price and Page) Act, 1956 was challenged on the grounds that the curtailment of the advertisement space in the newspaper incurred losses for the press and directly impacted Article 19(1) (a). Restrictions on advertising income resulted in less circulation of the newspaper, causing harm to the freedom of the press. The Court held that freedom of the press also included the freedom to determine the prices, pages, and circulation of the newspaper.
Right to Criticise
Kedar Nath Singh vs State of Bihar [AIR 1962 SC 955]
The Court observed that the strongly-worded criticism of any government action does not invite penalty under Section 124-A of IPC, and would be treated as consisting of the freedom of the press under Article 19(1).
Right to Conduct Interviews
Prabha Dutta vs Union of India [(1982) 1 SCC 1]
The Court held that the right to interview by the press can be refused by government authorities after providing undisputable reasons which ought to be recorded in writing. The petitioner was seeking an interview of prisoners which was denied by the Jail Superintendent on valid grounds under the Manual for the Superintendence and Management of Jails.
Reporting of Court Proceedings
- Kartar Singh v. State of Punjab [(1994) 3 SCC 569]
The court held that the right to report court proceedings was an inherent right under the freedom of the press. It assists in increasing public knowledge and functioning of the legal system within the country. - Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1]
The court ratified the Kartar Singh judgment and held that the publicity of proceedings was not an absolute right under freedom of the press. The concerned court of law has the discretion to restrict the publicity of the proceedings in the interest of justice. Those cases where proceedings in open court would defeat the purpose of justice can be restricted from being publicly reported by the press.
Conclusion
The journey of Media Law has been a tussle between the freedoms of the press and the restrictions on the press. The freedom of the press has been recognized as the ark of a covenant democracy like India. It plays an important role in generating public opinion and revealing administrative truths. Presently, there are measures to moderately control the media using contempt jurisdiction and ancillary laws. However, it is still not sufficient when it comes to ensuring cautious conduct of the media when it comes to the rights of an accused person. Trial by media is a form of press reporting which requires strict control and restriction.
There is a violation of the procedure established by law and disregard to the judiciary when a person becomes victim to the media trials. Defamation by media also needs careful consideration, especially in the cases of the online independent press where anonymity remains a key obstacle in locating the offender. The 200th Law Commission Report, 2006 dealt with the problem of defamation by media trial and the injustice caused to the victims. Although defamation is covered under Article 19(2), there is still a requirement for a comprehensive study of the defamation laws in India when it comes to media reporting.
Another burning issue surrounding the abuse of press freedom is the contempt of court. The issue lies in the extent of the contempt jurisdiction which can be exercised by the courts without harming the freedom of the press arbitrarily. The manner of its application has always been inconsistent and needs a precise definition of the defense of ‘bona fide intent’ under Section 13 of the Contempt of Court Act. The self-regulation of content by media also needs re-evaluation, to improve the quality of press reporting in India and ensure the spread of vital information instead of irrelevant TRP-driven content of no significance.
The News Broadcasters Association regulates the news and current affairs channels on television networks. They have a self-regulated Code of Ethics which is overseen by the News Broadcasting Standard Authority. The punishment for contravention of the Code of Ethics is a fine of INR 1L; it also needs to be reviewed to create a deterrence effect among the media channels. Because the Association governs almost everything shown by the media, there is also a monopoly within the system. This results in media ownership which is under-regulated to suit the needs of the Association members. It leads to unwarranted corruption within the system and unbiased reporting takes the back seat. Hence, media requires regulation by a statutory body to ensure a better quality of press reporting.
References:
- Dr. Jhumur Ghosh, Indira Gandhi’s call of emergency and press censorship in India: the ethical parameters revisited, Vol. 7 Global Media Journal (2016)
- Kiran Prasad, Media Law in India, Kluwer Law International (2011)
- Akash Kamal Mishra, Media laws in India: A brief observation, Notion Press (2020)
- Rajkumar S. Akudia, Media law in India http://www.caaa.in/Image/media_laws.pdf (15th Nov., 05:00 PM)
- V. Krishna Ananth, India’s Free Press Is Still Tormented by the Laws Brought by the Emergency, The Wire https://thewire.in/history/emergency-free-press (15th Nov., 2021, 06:00 PM)
- Emergency in India: How the Press was affected in 1975-77, The Times of India https://www.timesnownews.com/india/article/emergency-in-india-how-the-press-was-affected-in-1975/246017 (15th Nov., 2021, 06:30 PM)
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