The recent decision of the central government to ban NDTV India has raised concerns regarding the rights of free press in India. Mostly, people are using the ‘freedom of speech & expression’ interchangeably with the rights of a free press.
But are both one and the same?
The constitution of India guarantees freedom of speech and expression to all its citizens under Article 19, which deals with protection of certain rights regarding freedom of speech, etc. Clause (1) (a) of Article 19 states, “All citizens shall have the right to freedom of speech and expression.” Article 19(1) (a) draws inspiration from the first amendment to the United States constitution, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
However, the Indian news press enjoys the freedom to engage in the business of disseminating news to audience under the right to carry out any profession, occupation, trade, industry or business, guaranteed under Article 19(1) (g).
Complications arise when Article 19(1) (a) and (g) are read to be one and the same and even the oversight and restrictions in the interest of the 'general public' contemplated under Article 19(6) are ignored because of this obfuscation.
Entities such as NDTV engaged in the business of news/media are a prime source of information, helping people to cultivate opinions on the political, economic and social situation in the country. The traditional print media still retains influence and television is widely popular, but public opinion, especially of the youth, can be gauged through social networking platforms and the so-called 'new media'.
In this way, the media continues its role as a kind of non-formal educator, helping citizens to make judgments, often by presenting views which are contrary to those of the government. This vaunted position occupied by the media, including surveying the judiciary, executive and legislature alike, does not come without implicit responsibilities. Hence, the restrictions on the business of news/media under Article 19(6), when deemed necessary to ensure an effective protection of the rights of common citizens under Article 19(1) (a).
Though this is being cited as the first incident where the government has censured the media in the interest of national security, recent history is rife with examples of the government curtailing media freedom to protect the general public interest.
Far from regulation of media by the government, at present, the Indian media industry is a largely self-regulated consortium. The informal nature of this self-regulatory mechanism only adds to the risk of an unregulated vital sector such as media falling prey to priorities and practices which could be contrary to public interest or as well be a threat to national security.
The call of the hour is a composite code/piece of legislation in the media business space, one that will protect the freedom of press under such law but will also prevent media sector from impinging on the freedoms and rights of citizens of India and acting against public interest or national security in any manner.
A draft bill on media regulation prepared by an initiative of Hammurabi & Solomon and the Observer Research Foundation after obtaining wide stakeholder participation called the Maintenance Of Transparency and Code of Conduct and Prevention of Circulation, Publication or Broadcasting of Misleading Information by any Entity engaged in Circulation, Publication or Broadcasting of News (by any Medium) Bill ( a copy of the same is available @ Media Regulation Bill
) was an attempt to strike a balance between self regulation and a statutory oversight wherever and whenever such self regulation fails to protect the interests of the citizens of India, public interest and national security.
While endorsing and encouraging self regulation in the media space compulsorily, the bill suggests the establishment of an authority governed by a board comprising a retired high court judge and two members, i.e. a joint secretary and an eminent person. Most important of all, the bill suggests that no serving editors be on the board. The bill provides the board with the power to take suo motu action as well as the power to impose a penalty for code of conduct violations as well as the violation of transparency disclosure norms, thus strengthening the existing self-regulatory mechanism.
It further suggests the establishment of an appellate authority headed by a retired supreme court judge, a former secretary in the government of India and another member, all of whom can be removed from their posts for specified reasons only after an enquiry by the SC. It vests the appellate authority with the same powers as a civil court and recommends that appeals against their orders only to go to the supreme court of India. In effect what the bill recommends is an independent body having statutory sanction with strong processes in place and the power to penalise errant media entities.
The necessity of a free press to democracy is incontrovertible and enshrined in law and constitution in the India. The quality of that freedom, however, requires to be cautiously guarded so as to not infringe upon citizens rights, public interest or national security.
Freedom has many components and is rarely absolute or paramount in a democracy, if only, because democracy may itself be thought of as a system for reconciling competing freedoms. The press wields a unique power of impacting public opinion and plays a vital role in democracy. This power, however, must be exercised in tandem with other democratic values. Chief amongst these is the stipulation that press freedom promotes, and operates within, the rule of law which itself is often described as the cornerstone of a democratic society.
In a modern democracy that abides by the rule of law, press freedom can never mean a press which sits outside, above and beyond, or in disregard of, the law. Respect for the law is the common framework within which the press, as an important commercial sector, is enabled to flourish, to preserve and enjoy its freedoms, and to make its unique contribution to a democratic society.
The rule of law, in other words, seeks to also ‘guard the guardians’ and self regulation in the media space needs to ensure that media entities are mindful of their duty to be on the right side of the rule of law.