CJI DY Chandrachud while deliberating on Supreme Court's recent judgment that quashed the telecast ban on Malayalam news channel MediaOne imposed by the government last year, commented that national security cannot be used as an excuse or plea to deny citizens their rights and is "incompatible" with the rule of law.
Earlier, the CJI in his keynote address at the illustrious Ramnath Goenka Excellence in Journalism Awards (2023), expounded upon the pivotal role that a free and unfettered press plays in a vibrant democracy. Without a doubt, the survival of the latter is contingent upon the former.
Nonetheless, the current state of affairs, characterised by the chilling and oppressive curtailment of speech and the intimidation of journalists and media establishments, presents a pressing conundrum and begs the question: Does India truly possess freedom of the press?
The article, to examine aspects of the question of ‘freedom of press’ in India, dwells into:
1. Analysing the current structure of regulations that govern Press Media and Digital Journalism.
2. The expounded powers with IOs (“Investigation Authorities or Officers" ) to search media outlets through the BBC Case and
3. Putting forth the need for legal impunity to protect Journalists and Media outlets from undue harassment and attacks.
Despite Existing Laws Governing Press Freedom, Threats Attacks on Journalists Go Unpunished
Freedom of the press is not distinguished from the freedom of expression granted to every citizen under Article 19 (1) of the Constitution. The reason that underlies is simple—the assurance of free speech is not to be distinguished between the press and an individual.
Even though the Press was not granted any special rights or status, the need for regulation was immensely felt by the government in the late 1970s after the span of the Emergency as to preserve the status of the press and media along with restrictions as necessary with the enactment of PCI, 1978 ("Press Council of India Act, 1978”).
The Act was enacted to ensure press freedom and maintain the quality of standard in newspapers. The council constituted under the Act constitutes 28 members with the chairperson being selected by the Chairman of Rajya Sabha, the Speaker of Lok Sabha, and a member nominated by the council. The power of choosing a chairperson therefore rests indirectly with the ruling party of the time.
The primary body (“Council”) for preserving the Independence of the press, has many problems which are manifested in the 42nd Annual Report (2020-21) of PCI. First of all, the body has been granted the power of Civil court under CPC to summon, adduce and assess evidence, etc. However, no cases of upholding the object of the Council to preserve the independence of the Press and other objects of the Council under S13 (2) of the Act had been upheld by the Council in the year 2021.
It is an unsavory fact to accept that with International Reports of the UN and Human Rights Watchdog condemning direct and online attacks on journalists that have been increasing from the year 2017, there has not been a single case of prosecuting any person or authority for impinging upon the freedom of press journalism in India.
As per the official income and expenditure account for FY 2021, The Council expended nearly 90% of its income and grant-in on merely administration and maintenance of the Council! (Data sourced from Annual Report21). Even, the management of assets and resources is inefficient as reflected in the CAG Audit report on Council observing that there is no proper verification of physical assets, poor maintenance of asset registers, and MIS ("Management Information System”) and risk assessment are absent in the Council body.
Digital Journalism & the Conundrum of IT Act
Digital Media Journalism has been pivotal in providing daily on-ground realities of poor public health facilities and life-saving information on vaccine administering during Covid 19. The respective area of journalism is governed by relatively new rules—The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Under the notified rules, digital news outlets and over-the-top(OTT) platforms are required to comply with a set of ethical guidelines which will be enforced by a three-tiered system of oversight.
The problem on the top tier of oversight is that the inter-departmental committee constituted by the Ministry of Information and Broadcasting would hear grievances in an appeal against the Publishers. Hence, the power rests with the Executive to check whether the information can be characterised as gender discrimination, or harmful content, which is restrictive, not defined, and overtly broad.
There is an overlap of IT Rules, 2021 with other press laws as ‘online publishers’ would be governed as Digital Platforms under the rules (“Central Govt. Notification”). Therefore, if any publication is done on multiple platforms like TV, Newspapers, and the Internet, it remains unclear as to whether a grievance against the Publisher would be heard by Press Council, CTN (Regulation Act), or the Grievance appellate body under IT Rules.
For example, the MoIB could take up cases from the council and CTN Act on the basis that a similar publication has been filed on a digital platform ie, online. Hence, the power rests with the committee constituted by the Executive to adjudicate such a case. The dangers of such a situation can be anticipated with multiple publishers coming online to broaden their readers and viewers base.
How BBC Survey Fiasco Upends Journalistic Privacy, Privileges
The BBC documentary and the unfortunate sequence that followed don’t need to be reiterated here. However, the fiasco of IT survey in the BBC offices and subsequent investigations, show how authorities can be intruding into the privacy of journalists and media outlet offices without even so less a warrant.
For ease of understanding, S133-A of the Income Tax Act, 1961 allows Taxman to inspect documents and evidence in any place that comes within the jurisdiction of IT Authority without any reasonable cause or suspicion. Even though the documents cannot be seized, the intrusive nature of implication of BBC office surveys where phones and digital evidence were seized without a named warrant does describe the on-ground realities of giving broad power to the authorities.
The situation is not different with other authorities, Investigating Agency like the CBI has an Investigation Manual ("A Public Document”) which had been updated 15 years after in 2020 but is still not disclosed to the public as also pointed out by Justice SK Kaul, the manual is obsolete with present developments and is undisclosed for reasons best known to the agency.
The sheer power that the Investigating Authorities under different Economic offenses and Prevention laws carry without any disclosure of information exempted by the virtue of S24 of RTI, 2005, shows that if any person hijacks or could influence such organisation even minutely, it would be impinging upon press freedom to report the events in their true form and a violation of journalistic privileges to protect their anonymous sources.
Media Laws Need To Specifically Address The Impunity Question
The UN Report on “Safety of Journalists and Issue of Impunity” recognises that there is a need to protect journalists, especially females from gendered abuses, harassment online, and direct attacks. As highlighted in the article, the laws in India that regulate press and digital media freedoms, are overtly restrictive and disproportionally broad as to legitimately restrict freedom of speech as per Article 19 (2) of the Constitution.
Dr BR Ambedkar had stated back in the day that there was no need for a special arrangement for Media laws regulating the content of speech differently. However, in the era of overt regulations curating and assessing content on daily basis, the scope of Media rights keeps getting more choked.
In such a restrictive and chilling environment of intimidation and harassment of journalists, the environment for fearless journalism keeps getting more and more enclosed. The press freedoms of Journalists and media outlets could thus only be protected by giving certain impunities including protection of persons and organisation from arrest without warrants under any civil offense laws, protection of journalistic privileges in search and seizure of evidence, and express recognition of protection for journalists from digital threats.
“It is only through recognition and protection of Press Freedom that a democracy can relish its vibrance as the greatest Democratic polity in World.”
(Prithvi Raj is a third year law student at the National Law University, Jodhpur.)
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