Rahul Deo, CNLU Patna
Editor’s Note: Freedom of speech and expression is the blood of democracy, palpitation of democracy, control of the government and creates awareness among the people. Blood removes the dead cell in the same manner freedom of speech and expression removes the arbitrary government and place a democratic government. This paper evaluates the contribution and necessity of freedom of press in a democracy.
The liberty of the press is the palladium of all the civil, political, and religious rights.[i] In a democratic set up the press can act as a bridge between the government and the people. This right is very important at the stage of the formation of the government. Democracy can not survive without this right. Press is the fourth pillar of the democracy, which exercise this right of freedom of speech and expression. The rights originate from the US constitution. The role of media is important as a feedback, exposure, and conduit mechanism in all countries. Most citizens receive their information about what is going on in the government, and how it affects them, through the filter of the media. The media have also played a traditional watchdog and gadfly role, in investigating misbehaviour by politicians and officials and private business, a role traditionally summarized as “comforting the afflicted and afflicting the comfortable.” The media is thus a crucial instrument of accountability, in addition to being an instrument of communication. A free press and free media rank along with an independent judiciary as one of the two institutions that can serve as powerful counter forces to corruption in public and private life.
The Freedom of the press is regarded as a “species of which freedom of expression is a genus.”[ii] Freedom of the press is the freedom of communication and expression through vehicles including various electronic media and published materials. While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other legal protections.
The Universal Declaration of Human Rights states:[iii]
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers”.
In general, we can say that Freedom of the press is the freedom of communication & expression through vehicles including various electronic media & published materials. While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other protection.
The fundamental right of the freedom of the press implicit in the freedom of speech and expression is essential for political liberty and proper functioning of democracy. Freedom of Press has perpetually been a cherished right in all democracies. “Growth and development of representative democracy is so much intertwined with growth of press that the press has come to be recognized as an institutional limb of modern democracy”. In India before Independence, there was no constitutional or statutory guarantee of freedom of an individual or media/press. At most, some common law freedom could be claimed by the press, as observed by the Privy Council in Channing Arnold v. King Emperor [iv]: “The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.”
The press freedom is about the power being centred in the specific issue that is supported by different technological aspect in bringing the information and communication. The freedom of expression is an evolving issue around the world and different countries are attempting to provide such law in which people can fully embrace their right.
The Indian Press has a long history right from the times of British rule in the country. The British Government enacted a number of legislations to control the press, like the Indian Press Act, 1910, then in 1931-32 the Indian Press (Emergency) Act etc. During the framing of the Constitution the founding fathers bestowed enormous significance to Freedom of the Press. B. N. Rao, the Constitutional Advisor to the Constituent Assembly assured that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.
Dr. Ambedkar said that we don’t want to give absolute rights to the press because it has two aspects. The right could be given to the first aspect of the press and not to the second aspect. The press is a right of expression. The Constitution of India in Article 19(1) (a) lays down that “All citizens shall have the right, to freedom of speech & expression and it include the right to press also.” This concept has been warranted by the Supreme Court of India. In numerous judgements the Supreme Court has ruled that Freedom of the Press is contained in the guarantee of freedom of speech and expression in Article 19(1) (a) of the Constitution. The freedom of press means freedom from interference from authority which would have the effect of interference with the content & circulation of newspapers.[v]
In the view of democracy, it only means that people or the citizens can enjoy full freedom of speech and expression and can be only restricted within the reasonable subject. During the era when the press council in India felt anxiety, the birth of the Media Law is implemented and followed by the Press Regulations that significantly had an impact on the publishing industry. Next is the introduction of the compulsory licensing for owning and running the printing presses which is typically empowered by the government. This action simply means to prohibit the publication or circulation of any newspaper, book, or other printed material. The banning of the publication or dissemination created a commotion against the government that effectively weakened the power of authority. This process continued and through the years brought a significant change and created a fundamental right in the constitution. The entire developed article in the institution of the country speaks about the freedom to express and expression and the birth of the Press Council in India.
AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS
Article 19(1) (a) of the Indian Constitution states simply that ‘all citizens shall have the right to freedom of speech and expression’. The companion Article, Article 19(2) qualifies this right by providing that the State can impose reasonable restriction on its exercise
In the interests of the sovereignty and integrity of India
The security of the State
Friendly relations with foreign States
Decency or morality or in relation to contempt of Court
Defamation or incitement to an offence
The Indian Constitution, while not mentioning the word “press”, provides for “the right to freedom of speech and expression” (Article 19(1)(a). However this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement to an offense”. Laws such as the Official Secrets Act and Prevention of Terrorist Activities Act[vi] (POTA) have been used to limit press freedom.[vii]
Article 19(1)(a) does not refer specifically to the freedom of the press as does, say, the corresponding provision in the American Constitution, but judicial decisions have repeatedly affirmed that the Article is sufficiently wide to include the freedom of the press and, by extension, the freedom of other mass media. In Romesh Thapar’s Case[viii], and in several subsequent cases strict and narrow limits have been placed on the Legislative powers to abridge the right conferred by Article 19(1) (a). Any restriction on Article 19(1) (a) can only is valid if three conditions are met – It is supported by the authority of law, The law in question is related to one or more of the permitted heads of restrictions laid down under Article 19(2); and
The restriction is reasonable. It is also necessary that the procedure and the manner in which the restriction is imposed be just, fair and reasonable.[ix]
In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, vide Brij Bhushan and Another vs. The State of Delhi,[x]and Sakal Papers (P) Ltd vs. Union of India,[xi] among others. However, as mentioned in Article 19(2), reasonable restrictions can be placed on this right, in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Hence, freedom of the media is not an absolute freedom.
MEDIA: FOURTH PILLAR OF DEMOCRACY
Freedom of press has always been a cherished right in all democracies. “Growth and development of representative democracy is so much intertwined with growth of press that the press has come to be recognized as an institutional limb of modern democracy.”[xii] Speaking of democracy, political scientists and experts always say there are four pillars of democracy, namely the judiciary, executive, legislative, and media.[xiii] More functioning judiciary as an institution of the judiciary, the executive is more to the government, while the legislature as an institution that makes the laws and overseeing government performance.
Media is an important and inseparable part of a democratic society. It is in fact called the fourth pillar of democracy. Before the advent of electronic media, print media played an important role in disseminating information to people. Over the years, a wide variety of media like the press, performing arts, television, radio and films have been used for communication. Furthermore, the fourth pillar which is also very important is the media. Why the media can be regarded as the fourth pillar of democracy? Because often times people assume that the media is more neutral and free from elements of state power, in contrast with the previous three pillars which are all oriented to power. The media not only as a source of news, but it is also the voice of the people carrier and fittings. The media also often become a tool for suppressing the three pillars of democracy before.
There are a minimal number of pillars needed to support the infrastructure of democracy. If you wish to build a bridge, there are principles of engineering that must be followed. Similarly, there are seven main pillars of the architecture of democracy:
The rule of law,
Freedom of expression (it includes the press)
Accountability and transparency,
But democracy, unlike bridge building, isn’t just science; it is also the art of the possible. The fourth pillar sustaining democracy is freedom of expression. What people in civil society are allowed to say, print, distribute, and discuss is indicative of the democratic nature of a political system. A free press is one measure of freedom of expression in a society.
The newspaper not only presents facts but also gives interpretation of facts and statements of opinions through its editorials and also propagates ideas and ideologies. The press has therefore been rightly described as the Fourth Estate.
Although no democracy has absolute freedom of speech, unless citizens have the right to express themselves in the political process, no government can be made accountable for its actions. Each country places its own limitations on freedom of expression. What matters is that those limitations are not misused by political forces to limit public scrutiny of policies and actions that have an impact on the integrity of governance. For example, if criminal libel laws effectively thwart whistle blowing on irregularities or corruption, democracy is diminished. And hence it is also very necessary to limit this influential institution’s powers.
“Freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances as it would lead to disorder and anarchy.” [xiv] We are the part of the democratic country and where the citizen is all in all and there must be check and balances on the government and the media plays that role regarding the check and balances on the government. Abraham Lincon gave the definition of democracy in the words, “Democracy is the people, for the people and by the people.”
Media is regarded as one of the pillars of democracy. Media has wide roles in the society. Media plays a vital role in moulding the opinion of the society and it is capable of changing the whole viewpoint through which people perceive various events. The media can be commended for starting a trend where the media plays an active role in bringing the accused to hook.
WHETHER FREEDOM PROVIDED TO THE MEDIA IS GENUINE OR NOT?
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the government as an additional check on the three official branches- executive, legislative and the judiciary.[xv] It is primary function of the press to provide comprehensive and objective information on all aspects of the country’s social, economic and political life. The press serves as a powerful antidote to any abuse of power by government officials and as a means for keeping the elected officials responsible to the people whom they were elected to serve.
In India, freedom of press is implied from the freedom of speech and expression guaranteed by Article. 19(1) (a). There is no specific provision ensuring freedom of press as such. The freedom of the press is regarded as a “species of which freedom of expression is a genus.”[xvi] Thus, being only a right flowing from the freedom of speech, the freedom of the press in India stands on higher footing than the freedom of speech of a citizen, and the press enjoy privilege as such distinct from the freedom of the citizen.
The Supreme Court has laid emphasis in several cases on the importance of maintaining freedom of press in a democratic society. The press seeks to advance public interest by publishing facts and opinions without which a democratic electorate cannot make responsible Judgments. Articles and news are published in the press from time to time to expose the weakness of the government. The primary duty of the courts to uphold the said freedom and invalidate all laws or administrative action which interferes with the freedom of the press contrary to the constitutional mandate.[xvii] Article 19 (1) (a) applies to citizens only and so a non-citizens running a newspaper cannot seek the guarantee of this constitutional provision.
Press in India and the reaction of Supreme Court
The press or media acts as a watchdog of democracy. In fact, post-independence, the India press has played a vital role in restraining corruption and injustice in the nation. The press is also instrumental in arousing the general public’s interest in the government and its operations. However, like everything else, there is a flipside to this as well. Over the last few years, yellow journalism has been rampant in Indian press, which has lead to widespread misconducts in the nation.
In Romesh Thappar v. State of Madras[xviii], the Supreme Court held that there can be, no doubt, that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. Liberty of circulation is an essential to that freedom as the liberty of publication. Indeed, without circulation the publication imposed on grounds mentioned in Article 19(2) of the Constitution. A law which authorises imposition of restrictions on grounds of ‘public safety’ or the ‘maintenance of public order’ falls outside the scope of authorised restrictions under clause (2) and therefore, void and unconstitutional.
In Indian Express Newspapers v. Union of India[xix], the Supreme Court emphasized the importance of freedom of press in these words:
…..The expression freedom of press has not been used in Article 19 but it is comprehended within Article 19(1)(a). The expression means freedom from interference from authority, which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make a responsible judgement. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions, which interfere with it contrary to the constitutional mandate.
In Sakal Papers(Private) Limited v. Union[xx], Supreme Court had observed that the right to freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions, and views with complete freedom and by resorting to any available means of publication, subject to the restrictions imposed under Art. 19(2). The Indian Constitution does not expressly provide for the freedom of the press but this freedom is included in “Freedom of speech and expression” guaranteed by Article 19(1)(a).
Blackstone said that the essence of freedom of expression is that every person should be able to lay his sentiment before the public without previous restraint, that to forbid this, is to destroy the freedom of the press; but if publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.[xxi]
In Bennet Coleman Company v. UOI [xxii], the Court held that Freedom of press is both quantitative and qualitative. Freedom lies both in circulation and in content. The fixation of page limit will not only deprive the petitioners of their economic viability but also restrict the freedom of expression by compulsive reduction of page level entailing reduction of circulation and the area of coverage for news and views.
In Hamdard Dawakhana v. UOI [xxiii], the Supreme Court has held that an advertisement is no doubt a form of speech and expression of ideas. In the present case the advertisement was held to be dealing with commerce or trade and not for propagating ideas. Advertisement of prohibited drugs would thus not fall within the scope of Article 19(1)(a).
In view of the Supreme Court decision in Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd.[xxiv] the ruling in Hamadard Dawakhana case has now a limited application that is, prohibiting an abnoxious advertisement and cannot be applied to general advertisement as such. In this case the Court has held that commercial speech is a part of the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. ‘Commercial speech’ cannot be denied the protection of Art. 19(1)(a) of the Constitution merely because the same are issued by businessman. Describing the advertising as the cornerstone of Indian economic system, the Judges said that low prices for consumers are dependent upon mass production, mass production is dependent upon volume of sales, and volume of sales are dependent upon advertising.
In Printers (Mysore) Ltd. v. Assistance Commercial Tax Officer[xxv], the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a Fundamental Right, it is implicit in the all democratic countries and the press has rightly been described as the fourth estate. The democratic credentials of a state are judged by the extent of freedom the press enjoys in that state.
The Supreme Court has emphasized that the freedom of the press is not so much for the benefit of the press as for the general community because the community has a right to be supplied with information and the government owes a duty to educate the people within the limits of its resources.
RIGHT TO INFORMATION AND THE ROLE OF MEDIA
Article 19 of the Universal Declaration of Human Rights adopted by the United Nations states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Information is regarded as the oxygen of democracy. It invigorates where it percolates. If people do not know what is happening in their society, if the actions of those who rule them are hidden, then they cannot take a meaningful part in the affairs of the society. Freedom of expression, free dissemination of ideas and access to information are vital to the functioning of a democratic government. Information is crucial for a vibrant democracy and good governance as it reflects and captures Government activities and processes. Access to information not only facilitates active participation of the people in the democratic governance process, but also promotes openness, transparency and accountability in administration.
‘Right to Information’ (RTI), the right of every citizen to access information held by or under the control of public authorities, can thus be an effective tool for ushering in good governance. The major characteristics of good governance are participation, rule of law, transparency, responsiveness, equity and inclusiveness, effectiveness, efficiency, accountability, strategic vision and consensus-orientation. Transparency means that decisions are taken openly and enforced as per rules and regulations. It requires that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement. It also means that enough information is provided to all the stakeholders in easily understandable forms and media to enable their meaningful participation in decision making processes. Accountability means that public institutions and functionaries are answerable to the people and to their institutional stakeholders. In general, an organization or an institution should be accountable to those who will be affected by its decisions or actions. Accountability cannot be enforced without a regime of transparency.
A direct relationship exists between right to Information, informed citizenry and good governance. The Right to Information provides citizens the opportunity of being informed of
what the Government does for them, why and how it does it. Good governance provides a platform that enables government functionaries to operate efficiently, effectively and transparently and be accountable to the public for their actions. It aims to put an end to inconsistent government practices and helps in establishing a responsive State. Public participation in Government, respect for the rule of law, freedom of expression and association, transparency and accountability, legitimacy of Government, and the like, which are the core values of good governance, can be realised only if the right to information is implemented in the right spirit. Right to information is the hallmark of good governance.
MEDIA AND DEVELOPMENT
The media can make a real difference to the lives of poor and disadvantaged people by:
- making people more aware of their rights and entitlements;
- enabling people to have access to government programmes, schemes and benefits;
- making people more aware of political issues and options and helping to stimulate debate;
- educating the public on social, economic and environmental issues;
- drawing attention to institutional failings – corruption, fraud, waste, inefficiency, cronyism, nepotism, abuse of power and the like;
- fostering exchange of best practices, knowledge resources, access to better technology, and to better choices;
- creating pressure for improved government performance, accountability and quality, for example in service delivery; and
- providing a discursive space for citizens to dialogue with other actors in the governance process.
The three main areas through which the media can make a significant impact on development and poverty reduction are:
Media has a definite role to play in the empowerment of citizens. It gives voice to the needs and aspirations of the people and provides them access to relevant information. When people lack a voice in the public arena, or access to information on issues that affect their lives, and if their concerns are not reasonably reflected in the public domain, their capacity to participate in democratic processes is undermined. Media, in all its varied forms, has opened up the potential for new forms of participation.Thus, the vulnerable and marginalized sections of the society such as the poor, women, weaker sections and socially disadvantaged are also using the media to make their voices heard.
2) Social Awareness & Action
The potential of mass media to be effectively employed to enhance social awareness is unquestionable.The news media plays a decisive role in establishing a discursive space for public deliberations over social issues. Giving a voice to the poor also entails giving the poor people adequate opportunities to take initiatives for overcoming their problems. The media, through its role in shaping public awareness and action, can be a critical factor in facilitating sustainable development and poverty reduction.
3) Good Governance
Good governance is recognized as central to poverty eradication, and a free media is a necessary condition for good governance. As an information conduit between corporations, government, and the populace, the media acts as a watchdog against government malfeasance, while at the same time fostering greater transparency and accountability. The media monitors public service delivery and reports on key issues to the public at large, and in this process exerts pressure on public service providers. By highlighting institutional failings to guard against and institutional successes for replication, the media creates the right framework of incentives for good governance. A free press is integral to good governance. It lets people voice diverse opinions on governance and reform, expose corruption and malpractices and help build public consensus to bring about change. It monitors basic public service delivery and promotes human development.
EFFECTS OF MEDIA IN OUR SOCIETY
Every coin has two sides. There are both positives and negatives of one single given notion. The media, known as the fourth pillar of democracy, has a huge impact on the society. The effects are of course, positive as well as negative. It is upto the people to decide which effect they want to bask in. Media is such a powerful tool that it literally governs the direction of our society today. It is the propeller as well as the direction provider of the society. Opinions can change overnight and celebrities can become infamous with just one wave by the media.[xxvi]
The Bright Side
Information on the latest happenings reaches people in just a matter of minutes. The vision of media reaches even the remotest corners of the country and makes sure that everyone is aware of what is going on in the country. The easy and swift availability of any given information makes media one of the most reliable sources for forming public opinion. It bridges the gap between the leaders and the masses by becoming their channel of communication.
It brings into open the innumerable achievements that are going on in the country. Media gives ordinary people the power to reach out to the society as a whole. It can make heroes out of ordinary men. The media acts as a deterrent on corrupt practices and keeps a check on the working of the government. Media has significantly promoted social causes like literacy, health management, anti-dowry practices, discouraging female feticide, AIDS awareness, etc.
On the Contrary…
“The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses” – Malcolm X
Media can adversely affect the thinking capability of individuals and instill negative or destructive thinking patterns in the society as a whole. As already said before, media has the power to form and alter opinions. This means media can portray an ordinary thing so negatively that it may force people to think or act in quite the opposite way. Media glorifies violence and contains graphic descriptions or images. When viewed by the vulnerable portion of the society, i.e., the children, it can have grave effects on their upcoming and thinking patterns.[xxvii]
The media can sometimes go out of the way in advertising or glorifying certain issues. Usually, a bad or detrimental message is packaged in a glorious way and is made accessible to the public. Movies that depict filthy rich thieves who don’t bat an eyelid before killing someone or extorting someone and the getting away with it, sure give entertainment to people. At the same time, it encourages them to act in a way that promises adventure and thrill in life. This way, media glorifies the bad aspects of people and encourages them to act in forbidden ways.
In Democracy, the Government cannot function unless the people are well informed and free to participate in public issues by having the widest choice of alternative solutions of the problems that arise. Articles and news are published in the press from time to time to expose the weaknesses of the governments. The daily newspaper and the daily news on electronic media are practically the only material which most people read and watch. The people can, therefore, be given the full scope for thought and discussion on public matter, if only the newspapers and electronic media are freely allowed to represent different points of views, including those of the opposition, without any control from the Government. The following suggestions are offered in this connection: Freedom of press may be inserted as a specific fundamental right under Article 19 of the Constitution of India. Parameters of freedom of press should be clearly earmarked. Information must be available at an affordable cost within specified, definite and reasonable time-limits. Free press should not violate right to privacy of an individual. Free press must be law enforcing and preventive of crime. Rule of law must be followed by the free press. Influence through free press upon the judiciary should not be exercised. Press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour. It shows that there are certain restrictions on the freedom of press.
Edited by Saksham Dwivedi
[ii] Sakal papers v. Union of India, AIR 1962 SC 305: (1962) 3 SCR 842.
[iii] Article 19 of Universal Declaration of Human Right
[iv] (1914) 16 BOMLR 544
[v] Sakal Papers Ltd. V. UOI AIR 1962 SC 305
[vi] http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.htm last visited on 15. 09. 2014 at 11:16am
[vii] The prevention of Terrorism Act, 2002.
[viii] Romesh Thapar Vs. State of Madras, AIR 1950 SC 124
[ix] Express Newspapers Limited Vs. Union of India, AIR 1958 SC 578 at 621
[x] AIR 1950 SC 129
[xi] AIR 1962 SC 305
[xii] Vide Author’s Commentary on the Constitution, 6th Ed,Vol C, pg 95-97; Indian Express v Union of India(1985) 1 SCC 641
[xiv] In re , Harijai Singh ,(1996) 6 SCC 632; AIR 1995 SC 264
[xv] New York Times v. Sullivan, 376 U.S. 254;
[xvi] Sakal Newspaper v. Union of India, AIR 1962 SC 305. : (1962) 3 SCR 842
[xvii] Indian Express Newspapers(Bombay) p. ltd. V. Union of India, AIR 1986 SC 515;
[xviii] AIR 1950 SC 124
[xix] (1985) 1 SCC 641
[xx] AIR1962 SC 305
[xxi] Blackstone, Commentaries on the Laws of England (1765; 4th ed. 1770 in 4 uol } Bok 4 Chap II, 151-152) 13
[xxii] AIR 1972 SC 106
[xxiii] AIR 1960 SC 554
[xxiv] (1995) 5 SCC 139
[xxv] (1994) 2 SCC 434
[xxvi] http://lifestyle.iloveindia.com/lounge/what-are-the-effects-of-media-in-our-822.html last visited on 07-09-2014 at 10:30 pm