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Author: Moksh Bhatnagar, III year of B.B.A.,LL.B.(Hons.) from Unitedworld School of Law, Karnavati University

Freedom of Press

In any democracy, the free exchange of ideas and knowledge takes place when there is unrestricted communication. It is guaranteed through the "freedom of speech and expression", the most cherished fundamental right, as envisaged not only under the Constitution of India[i], but various international covenants[ii], resolutions, and international legislations. In any democracy, communication- oral, pictorial, or musical communication of speech- is an essential right involving people to contribute to civic activities. However, the whole idea of having the freedom of speech and expression is pointless if such communication and speech are "locked" in boxes than openly shared without fear. The media in any democratic country plays a major role in circulating such speeches and expressions. It shall be duly noted that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by freedom of circulation.[iii]

Although there is no separate constitutional provision for the freedom of the press in the constitution, it is implicit under Article 19(1)(a). The same has been established and reiterated by the Supreme Court on several occasions[iv]. Hence, it is inherent that the role of media is of utmost importance in any democracy. The media is popularly referred to as the “Fourth Estate”[v] as it plays a crucial role in a democracy. It is the watchdog of public interest and its role as witness and commentator on the activities of the Government, various social and political institutions, and society at large, is vital. As the voice of the masses, representing their concerns, the media not only interprets and comments on the present but also sets the agenda for the future.

The Supreme Court has further held in the landmark case of the Cricket Association of Bengal[vi]has observed the following:

"…One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when the medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations… Hence to have a representative central agency to ensure the viewers' right to be informed adequately and truthfully is a part of the right of the viewers under Article 19(1)(a).

The principle of media pluralism has been recognised as it can be logically inferred from such observations. Any effort to erode the plurality of voices in media will be a direct violation of Article 19(1)(a) of the Constitution.

Issues in the current regulation

Currently, there are no restrictions for investment in the press, or any such funding rules, however, there is a limit of 26% Foreign Direct Investment which is only allowed through government-approved routes.[vii] The non-regulation of who can own or fund press and media houses is a significant hurdle to free and "unadulterated" speech and opinions of the press. The commercialisation of the press and media seem to have hurt editorial independence. During times of struggle for independence, newspapers and press was a medium to imbibe the feeling of patriotism and to display resilience against the colonial powers. Since then, the press has evolved on a completely different tangent.

To regulate the press, upon the recommendations of the First Press Commission, the Press Council was established in 1965[viii] and further administrative amendments were constituted in 1978[ix]. The Press Council was established not just to regulate the press but to perform a variety of functions which included concerning itself to matters of concentration of ownership which may hamper the freedom of the press. Section 13 (2)(i) of the Press Council Act reads as follows:

(i) “to concern itself developments such as concentration of or other aspects of ownership of newspapers and news agencies which may affect the independence of the Press;”

Hence, it is well established that the press council has the extensive authority to take into account whenever any ownership and funding rules impede the functioning of the press. However, the Press Council is merely a statutory body with no punitive powers. It may draw recommendations but as no authority to impose punishments, making it a toothless tiger. The same has been duly noted in the case of Ajay Goswamivs Union of India[x]. It was submitted that the Press Council was a body that was constituted for preserving the freedom of the press and maintaining and improving the standards of newspapers and news agencies is a powerless body. Hence, even though there exists an authority in pages of legislation, its presence is almost negligible. The Press Council has no jurisdiction on imposing restrictions on ownership.

The direct or indirect ownership/funding of the press by the government may have ruinous effects on the functioning of a democracy. Even though the media interests of corporate entities have usually been justified on the grounds of the funds they bring to this capital-intensive sector and the right to invest in a line of business of their choice, a quid pro quo deal with the media entity guaranteeing favourable coverage can seldom be ruled out.[xi] Hence, the freedom of the press may not just be compromised, but the same press and media may even be used as an instrument of self-promotion during electoral campaigns. Unrestricted ownership and the overweening commercialisation of the media has compromised the media’s primary objective and responsibility of fair and unbiased news dissemination, thereby severely affecting its credibility.

Impact of such fallacies

The absence of competent regulatory framework has had dire implications on the status on the press of India. The lack of rules and regulations of the mediation of the press, and further, there is no punitive body for the violations of any rules or regulations, has deteriorated the situation of press. The freedom of press, which the Press Council of India vows to protect, has been destroyed by the inaction and lack of authority of the Press Council. The following has been duly noted through the following occurrence:

Reliance Industries (RIL) acquired complete controlling stake in Network18 for a whopping amount of Rs. 4000 crores. Upon such acquisition, senior journalists as the likes of RajdeepSardesai and SagarikaGhose gave in their resignations, with Sardesai indicating the compromise of editorial independence as a reason for his resignation.[xii] Further, there were several anonymous complaints about the change in the professional behaviour at Network18. For instance, ex-employees testified that they were pressurised to cover the loss of AamAadmi Party and ArvindKejriwal, who had been launching attacks against Mr Mukesh Ambani. The media house has denied all these allegations.[xiii]

Further, there are no regulations or funding rules for the press. This implies that press houses can obtain funds from any source, domestic or foreign. Adulteration of content is a common phenomenon in such conditions. There may be foreign entities that acquire a stake in editorial boards due to their financial influence on the press house, and satisfy their own propagandas, compromising editorial freedom and ethical standards of the media. For instance, China has allegedly funded a media house named NewsClick, as a probe by the Enforcement Directorate revealed that the media house received an amount of about Rs 38 crores in order to promote their propaganda and interests through the peddling of fake news. There are also several allegations against the media house concerning money laundering.[xiv]

Recommendations and Conclusions

Beyond any doubt, the press in the country certainly needs saving, saving in the form of regulation. The current status of freedom of the press is at the lowest point possible. The current self-regulatory framework has drastically failed not just the freedom of the press, but the profession of journalism as a whole. It is beyond doubt that a profession, which is as important to the functioning of a country as the press is, needs to be regulated.

The principle of self-regulation entails regulation by itself where the media does not have a regulatory body under it. There comes the dilemma of who maintains the checks and balances in what is written and published. Theoretically speaking, leaving the regulation to the media itself would generate the likelihood that it may subjugate regulatory aims to its own business goals.

It is indeed time that there is a uniform code of conduct for journalists, members of the press and even the stakeholders in the press. It can be concluded that if the government believes in self-regulation, it should have taken efforts to mandate or facilitate the coming together of the broadcasting fraternity under one umbrella. It should have formalised the self-regulatory code and penalties by consensus and by giving some sort of legal recognition for the decisions of self-regulatory bodies and thereby limiting the applicability of extant laws and by prescribing some minimum standards to be followed by them in the interests of viewers.

It is a fact that no human activity is feasible without some form of control. No institution can work progressively if it is self-regulated. Primary to self-regulation is the theory of intended conformity. The self-regulatory bodies cannot function unless it is free from bureaucracy, industrial and particular interests; unless a random check is done within the institution; unless it has the authority to oblige moral permit, for instance, the publication of rectification or an asking for forgiveness. In the light of these, it needs to be scrutinized as to how far self-regulation for media is justified. Therefore, the assumption is that just leaving the regulation to the media itself would create the possibility that it may subvert regulatory goals to its own business goals.

[i] Article 19 of the Indian Constitution, 1949 [ii] Article 19 of the Universal Declaration of Human Rights [iii]RomeshThapparvs State of Madras, AIR 1950 SC 124 [iv]Sakal Papers v. Union of India, AIR 1962 SC 305: (1962) 3 SCR 842, Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer (1994) 2 SCC 434. [v]Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515 at 539: (1985) 1 SCC 641. [vi]Secretary, Ministry of Information and Broadcasting, Govt. of India and Ors.vs. Cricket Association of Bengal and Ors. (09.02.1995 - SC) : MANU/SC/0246/1995 [vii]https://mib.gov.in/sites/default/files/Public%20Notice%20%20regarding%20FDI%20Policy%20.pdf [viii] The Press Council Act, 1965 [ix] The Press Council Act, 1978 [x] MANU/SC/5585/2006 [xi]https://www.trai.gov.in/sites/default/files/Recommendations_on_Media_Ownership.pdf [xii]https://www.livemint.com/Consumer/57yRvDxbdsfoQMhZMwWcPO/CNNIBN-editors-Rajdeep-Sardesai-and-Sagarika-Ghose-quit.html [xiii]https://www.reuters.com/article/india-media-idUSL6N0PW35A20140803 [xiv]https://www.opindia.com/2021/07/ed-newsclick-china-funding-gautam-navlakha-prabir-purkayastha/