A Critical Evaluation of Media Regulations in India

A CRITICAL EVALUATION OF MEDIA REGULATIONS IN INDIA

A Dissertation Submitted in Partial Fulfillment of the Requirements for the Award of the Degree of

Master of Philosophy in Law

by Parth Sharma (Reg. No. 1550001)

Under the Guidance of Shampa I Dev Associate Professor

School of Law

CHRIST UNIVERSITY BENGALURU, INDIA January 2017

APPROVAL OF DISSERTATION

Dissertation titled ‘A Critical Evaluation of Media Regulations in India’ by Parth Sharma,

Reg. No. 1550001 is approved for the award of the degree of Master of Philosophy in Law.

Examiners:

1. ______

2. ______

Supervisor: ______

Chairman: ______

Date: ……………………..

Place: Bengaluru (Seal)

DECLARATION

I Parth Sharma hereby declare that the dissertation, titled ‘A Critical Evaluation of Media Regulations in India’ is a record of original research work undertaken by me for the award of the degree of Master of Philosophy in Law. I have completed this study under the supervision of Dr Shampa I Dev, Associate Professor, School of Law.

I also declare that this dissertation has not been submitted for the award of any degree, diploma, associateship, fellowship or any other title. It has not been sent for any publication or presentation purpose. I hereby confirm the originality of the work and that there is no plagiarism in any part of the dissertation.

Place: Bengaluru Date: ………………… Signature of the candidate Parth Sharma Reg No.1550001 Department of School of Law Christ University, Bengaluru

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CERTIFICATE

This is to certify that the dissertation submitted by Parth Sharma (Reg. No. 1550001) titled ‘A Critical Evaluation of Media Regulations in India’ is a record of research work done by him during the academic year 2015-2016 under my supervision in partial fulfillment for the award of Master of Philosophy in Law.

This dissertation has not been submitted for the award of any degree, diploma, associateship, fellowship or any other title. It has not been sent for any publication or presentation purpose. I hereby confirm the originality of the work and that there is no plagiarism in any part of the dissertation.

Place: Bengaluru Date: ………………… Signature of the Guide Dr Shampa I Dev Associate Professor School of Law Christ University, Bengaluru

Signature of the Head of the Department School of Law Christ University, Bengaluru

ABSTRACT

The growth of media in recent years has prompted a debate on free speech and expression and extent of regulation on and by media. The moot issue which engulfs all this debate is the thin line of difference between, extent to which media can be regulated and the extent to which it should be regulated. On one hand, we have a section of society which advocates free speech absolutely and opposes any restriction on speech and expression by the Government; on the other hand we have another set of people which favour casting reasonable restrictions.

In this era of survival, all three organs of the state, i.e. The Legislature as the law framing agency, The Executive as the law implementing agency and The Judiciary as the law enforcing agency have played their individual roles with little overlaps effectively and efficiently. It is however, what is proudly termed as the Fourth Pillar of democracy i.e the Media which has tied the three organs of state together and acted as a watchdog to ensure accountability and performance of their respective constitutional duties. Broadly speaking, Media can be classified as Broadcast Media, Print Media and the newly added Social Media. While Broadcast Media primarily deals with telecasts on Television and other electronic devices with efficient powers of addressing large number of people at a time, Print Media is basically Newspapers, Journals and Magazines and Social Media is the use of Internet through websites such as Facebook, Twitter etc.

This dissertation dwells into the idea of medium specific regulation on media with powers of punishment and contempt and whether the mode should be self regulation, state regulation, or independent regulator and the researcher expresses his suggestions and observations towards bringing in a better regulations that can boost the efficiency in the legal system through media regulations by analysing media regulations in India along with approaches to regulate the media and drawing a comparative analogy of media laws in other jurisdictions i.e. the United Kingdom (UK) and the United States of America (USA) so as to craft and present best practices that can be recommended for reformation of media regulations in India.

Keywords: Print media, Broadcast media, Self-regulation, State-regulation, Independent regulator.

ACKNOWLEDGEMENT

I would also like to thank our esteemed Director Fr Benny Thomas who has always showed us the correct path to follow and helped us to realize our true potential that lies within us.

Sincere thanks to our Head of the Department and Associate Dean Dr Somu C.S who has been a constant source of inspiration.

I would like to thank my guide Dr Shampa I Dev for her great support throughout my entire dissertation work. This dissertation would not have been possible without her guidance. She has been very kind and has always been supportive and open to any new ideas and has also encouraged me not to lose hope and work earnestly in completing my dissertation.

It would not have been possible for me to complete this dissertation without the constant support of my parents and my sister who instilled confidence in me at every step of my work and motivated me to manifest my ideas into this structural form.

I am also greatly thankful to the ever supportive and diligent staff of Christ University Library Bangalore.

Last but not the least my friends who have always prayed for my well being and have stood by me throughout this work, giving me numerous suggestions to further ornament this work.

Date- (Parth Sharma)

LIST OF ABBREVIATIONS

AIR All India Radio BCCC Broadcasting Content Complaints Council BSC Broadcasting Standards Commission BBC British Broadcasting Corporation CEO Chief Executing Officer CCI Communications Commission of India ECHR European Convention on Human Rights EMMC Electronic Media Monitoring Centre FCC Federal Communication Commission FDI Foreign Direct Investment IBF Indian Broadcasting Foundation ICCPR International Covenant on Civil and Political Rights IPC Indian Penal Code IPSO Independent Press Standards Organizations ITC Independent Television Commission I&B Information & Broadcasting LPG Liberalization, Privatization and Globalization MoU Memorandum of Association MoIB Ministry of Information and Broadcasting NBA News Broadcasters Association NBSA News Broadcasting Standards Authority NEP New Economic Policy Ofcom Office of Communication PCC Press Complaints Commission PCI Press Council of India RA Radio Authority SEBI Security Exchange Board of India TRAI Telecom Regulatory Authority of India UOI Union of India UDHR Universal Declaration of Human Rights UK United Kingdom

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US United States USA United States of America

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LIST OF STATUTES

Broadcasting Acts 1990 & 1996 Cable Television Networks (Regulation) Act, 1995 Censorship of Press Act, 1799 Code of Civil Procedure, 1908 Communications Act, 1934 Communication Act, 1954 Communications Act, 2003 Copyright Act, 1957 Digital Economy Act, 2010 East Punjab Safety Act, 1949 Foreign Relations Act, 1932 Indian Cinematograph Act 1952 Indian Press Act in 1910 Indian Press (Emergency Powers) Act, 1931 Indian States Protection Act 1934 Indian States Protection against Disaffection Act, 1922 Indian Telegraph Act, 1885 Indian Wireless Telegraphy Act 1933 Information Technology Act, 2000 Licensing Regulations Act, 1823 Madras Maintenance of Public Order Act, 1949 Maintenance of Public Order Act, 1949 Newspaper (Incitement to Offences) Act, 1908 Office of Communication Act, 2002 Parliamentary Proceedings (Protection of Publication) Act, 1977 Postal Services Act, 2011 Prasar Bharti Act, 1990 Press Act, 1835/ Metcalfe’s Act Press Council of India Act, 1978 Press (Objectionable Matters) Act, 1951

Representation of People Act, 1951 Telecom Regulatory Authority of India Act, 1997 Telecommunications Act, 1996 Telegraph Wire Unlawful Possession Act, 1950 Vernacular Press Act, 1878 Wireless Telegraphy Act 2006 Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955

TABLE OF CASES

Ajay Goswami v Union of India, (2007) 1 SCC 143 Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 S.C.C. 1 AK Shukla v Comparative Physiology & Ecology, (1990-91) AR 100 Bennett Coleman & Co v Union of India (Bennett Coleman), AIR 1973 SC 106 Branzburg v Hayes, (408 US 665) Brij Bhushan v State of Delhi, AIR 1950 SC 129 CS Kalra v Arun Shourie, (1990-91) AR 100 Deepak Maini v Star Plus, 162 (2009) DLT 352 Directorate General of Doordarshan v Anand Patwardhan, AIR 2006 SC 3346 Dr SV Champure v Midday, (1989-90) AR 181 Express Newspaper (P) Ltd v Union of India, AIR 1986 SC 515 Government of India v Cricket Assn of Bengal, AIR 1995 SC 1236 Hamdard Dawakhana v Union of India, AIR 1960 SC 554 Indraprastha People v Union of India, WP (C) No 1200/2011 Kedar Nath Singh v State of Bihar, AIR 1962 SC 955 Life Insurance Corpn of India v Prof Manubhai D Shah, AIR 1993 SC 171 Mahesh Bhatt and Kasturi and Sons v Union of India, 147 (2008) DLT 561 Miller v California, (413 US 15) Near v Minnesota, (283 US 697) New York Times v US, (403 US 713) Odyssey Communications (P) Ltd v Lokvidayan Saghathana, AIR 1988 SC 1642 Rakhi Sawant v State of UP, CRIMINAL REVISION No - 844 of 2011 Romesh Thappar v State of Madras, AIR 1950 SC 124 Sahara India Real Estate Corpn Ltd v SEBI, (2012) 10 SCC 603 Sakal Papers Pvt Ltd v Union of India, AIR 1958 SC 578 Schenct v US, (249 US 47) Secretary Ministry of I&B v Cricket Association of Bengal, AIR 1995 SC 1236 Srishti School of Art, design and Technology v The Chairperson, Central Board of Film Certification the Delhi High Court, (2011) 3 AD Delhi 289

Star India Private Limited v Union of India, WP (C) 879/2010 Tata Press Ltd v MTNL, AIR 1995 SC 2438 Tej Kiran Jain v Sanjeeva Reddy, AIR 1970 SC 1573

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CONTENTS APPROVAL OF DISSERTATION ...... ii DECLARATION ...... iii CERTIFICATE ...... iv ABSTRACT ...... v ACKNOWLEDGEMENT ...... vi LIST OF ABBREVIATIONS ...... vii LIST OF STATUTES ...... ix TABLE OF CASES ...... xi CHAPTER 1 - INTRODUCTION ...... 1 1.1 Statement of Problem ...... 4 1.2 Objectives of the Study ...... 4 1.3 Methodology ...... 4 1.4 Scope of the Study ...... 5 1.5 Importance of Study ...... 5 1.6 Scheme of Chapterization ...... 5 CHAPTER 2 - LITERATURE REVIEW ...... 7 CHAPTER 3 - MEDIA REGULATION IN INDIA ...... 20 3.1 Evolution of Media laws in India ...... 20 3.1.1 The first printed newspaper ...... 20 3.1.2 The age of censorship and licensing begins ...... 20 3.1.3 The Gagging Act ...... 21 3.1.4 The Newspaper (Incitement to Offences) Act, 1908 ...... 22 3.1.5 The draconian legislation Indian Press Act, 1910 ...... 22 3.1.6 Press Committee, 1921 ...... 23 3.1.7 The resurfacing of a draconian legislation ...... 23 3.1.8 Media laws in post independent India ...... 24 3.2 Independence of Media and its Regulatory Agencies: An Overview of PCI & Prasar Bharti ...... 26 3.2.1 Press Council of India...... 27 3.2.2 Prasar Bharti : An Overview ...... 29 3.3 Freedom of Press under Indian Constitution ...... 30 3.3.1 Restrictions on the media ...... 32 3.4 Judicial decisions on Freedom of Press ...... 35 CHAPTER 4 - APPROACHES TO REGULATE THE MEDIA ...... 38 4.1 Need to Regulate Media ...... 38 4.2 Regulatory Problems Faced by Media...... 42 4.3 Self-Regulation v State-Regulation ...... 44 4.3.1 Regulatory Framework of Print & Electronic Media ...... 44 4.3.2 Self-Regulation and its Advantages ...... 45 4.3.3 De-merits of Self Regulation ...... 47 4.3.4 Concept of State Regulation ...... 49 4.3.5 The Communications Convergence Bill, 2001: An Analysis ...... 50 4.4 Independent Media Regulator ...... 55 CHAPTER 5 - MEDIA REGULATION IN UNITED KINGDOM AND UNITED STATES OF AMERICA ...... 57 5.1 Media Regulation in United Kingdom ...... 57 5.1.1 Regulatory Bodies ...... 57 5.1.2 Broadcasting Content Regulation ...... 58 5.1.3 Leveson Inquiry Report ...... 59 5.1.4 Analysis ...... 60 5.2 Media Regulation in USA ...... 61 5.2.1 Federal Communication Commission ...... 63 5.2.2 Broadcast Content and Cable Television Regulation ...... 64 5.2.3 Analysis ...... 64 CHAPTER 6 - CONCLUSION AND SUGGESTIONS ...... 66 BIBLIOGRAPHY…………………………………………………………………………….72

APPENDIX PUBLICATION

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CHAPTER 1

INTRODUCTION

In present time, debates on free speech and expression, limits of tolerance and extent of regulation on and by media have seen a lot of ink flowing to and fro. The moot issue which engulfs all this debate is the thin line of difference between, extent to which media can be regulated and the extent to which it should be regulated. On one hand, we have a section of society which advocates free speech absolutely and opposes any restriction on speech and expression by the Government; on the other hand we have another set of mooters which favour casting reasonable restrictions, the contours of which lie with the ruling regime. Recently, NDTV Hindi was directed to be banned for a day which created much hue and cry nationwide as an attack on free speech and the Supreme Court is currently seized with the matter. 1 More recently, the Government has started a trend of cutting off internet to curb the media from reporting live from riot affected areas.2 It is in this light, a well defined regulatory mechanism on media becomes the need of the hour.

Our Constitution provides that the Union of India is a 66 year old democratic republican society today. India survived serious conflicts with neighbour states, emergencies and violent internal disturbances in these 66 years. In this era of survival, all three organs of the state, i.e. The Legislature as the law framing agency, The Executive as the law implementing agency and The Judiciary as the law enforcing agency have played their individual roles with little overlaps effectively and efficiently. It is however, what is proudly termed as the Fourth Pillar of democracy i.e the Media which has tied the three organs of state together and acted as a watchdog to ensure accountability, performance of their respective constitutional duties, the flexible doctrine of separation of powers and the rigid rule of law.

Broadly speaking, Media can be classified as Broadcast Media, Print Media and the newly added Social Media. While Broadcast Media primarily deals with telecasts on Television and other electronic devices with efficient powers of addressing large number of people at a time,

1 Smriti Kak Ramachandran.2016. ”NDTV India ban : First time a news channel barred over national security”. Hindustan Times, November 4. Accessed November 8,2016, http://www.trinidadexpress.com/featured-news /Coral-bleaching--inTobago-111166274.html 2 Sheezan Nezami. 2016. ”NDTV Internet services remain suspended in many districts of Bihar”. Times of India, October 16. Accessed November 1, 2016, http://timesofindia.indiatimes.com/city/patna/Internet-services-remain- suspended-in-many-districts-of-Bihar/articleshow/54872666.cms

Print Media is basically Newspapers, Journals and Magazines and Social Media is the use of Internet through websites such as Facebook and Twitter and applications such as Whatsapp and Youtube. The three, in the current context have started overlapping as Youtube Channels are now being used as both Social Media and Broadcast Media, Newspapers and Journals run the news online and have E-Papers now as well and live Television feed of sports matches and TV series are available online through latest technologies such as Netflix and Hotstar.

The first question that pops up, which the researcher tends to answer in my report is that in such a diverse field, who is to media the media? In other words, how is media regulated in India, considering the important factum that the state must ensure that the Media is independent and impartial, accurate and worthy news must be transmitted to the citizens while reserving punitive powers to assure the retainment of its role. The Broadcast Media is regulated by Cable Television Networks (Regulation) Act, 1995. This legislation brought into force the Programme Code and the Advertising Code, which effectively control transmission of programmes and advertisements in tune with it. The Act however does not specify any regulatory authority. 3

The Broadcasting sector is therefore regulated by the Telecom Regulatory Authority of India (TRAI), which vests within itself, the power to notify rules from time to time on various matters. The Ministry of Information and Broadcasting (MIB) has established an Electronic Media Monitoring Centre which monitors content of all TV Channels and FM Radio Channels for compliance of the Programme Code and the Advertising Code. For channels transmitting News and current affairs, a self regulatory body News Broadcasters Association (NBA) has been established which has in turn set up the News Broadcasting Standards Authority (NBSA) and delegated complaint hearing and adjudicating powers to it in relation to the content broadcasted on such channels. The NBA comprises of member organizations who submit voluntarily to being regulated by it. The jurisdiction of NBSA, therefore is also limited only to members. NBA has prescribed a Code of Ethics to regulate television content and the NBSA has been empowered to censure and fine any broadcaster in violation with this Code up to a sum of Rs One lakh. 4

3Atul Dua, India: Framework For Content on Television (Mar. 14, 2016), http://www.mondaq.com/india/x/473716/broadcasting+film+television+radio/Framework+For+Content+On+Tel evision 4 Id.

The governing statute book for the Print Media is the Press Council of India (PCI) as established under the Press Council Act, 1978. The PCI however, has no penal powers against any entity for violation of its guidelines. In 2012, an attempt was made by PCI to cure this defect by passing a resolution urging the Central Government to bring electronic media and social media within its command framework and to rename itself as Media Council. This resolution was opposed strongly and therefore PCI, as on date, continues to selectively regulate institutions for print media interesting as a toothless tiger without any penal powers of enforcement. 5

A safe conclusion which can be drawn at this stage is that presently we don’t have a single independent statutory body to oversee contents, ethics, ownership and veracity of the diverse media. Scientific and technological advancements have made the job of regulation easier on one side and tougher on the other. In the current age of internet where videos go viral in a flash, posts are shared instantly, information (true or false) is transmitted very quickly to a large number of audience, political leaders have been alleged to have shared videos to trigger violence and the three sectors of media overlap with each other and intersect at many points.

Other menaces which demands immediate attention and redressal are Paid News or Sponsored News wherein a news or analysis appears in any media (Print or Electronic) for a price in cash or kind as consideration and complex legal issues like Private Treaties, permissibility of Sting Operations, Corporate control on media bodies, Comparative & Surrogate Advertising, Cross Media Ownership, disclosure norms among others. 6

The existing legal framework of regulation on media revolves around the Constitution of India,1950, The Press Council of India Act, 1978, The Cable Television Networks (Regulation) Act, 1995, The Representation of People Act, 1951, The Prasar Bharati Act, 1990, The Information Technology Act, 2000 and Parliamentary Proceedings (Protection of Publication) Act, 1977 along with the Reports & Consultation Papers floated by the Law Commission of India, Telecom Regulatory Authority of India (TRAI), Broadcasting Content

5 Markandey Katju , Media cannot reject regulation , (May 2,2012), http://www.thehindu.com/opinion/lead/media-cannot-reject regulation/article3374529.ece 6 P. Sainath, Paid news undermining democracy : Press Council report (Apr. 21, 2010), http://www.thehindu.com/opinion/columns/sainath/Paid-news-undermining-democracy-Press-Council- report/article16371596.ece

Complaints Council (BCCC), Parliamentary Standing Committees and Ministry of Information and Broadcasting (MoIB). 7

This paper dwells into the idea of medium specific regulation on media with powers of punishment and contempt and whether the mode should be self regulation, state regulation, or independent regulator and the researcher expresses his suggestions and observations towards bringing in a better regulations that can boost the efficiency in the legal system through media regulations by drawing a comparative analogy of media laws in other jurisdictions i.e. the United Kingdom (UK) and the United States of America (USA) so as to craft and present best practices that can be recommended for reformation of media regulations in India.

1.1 Statement of Problem

In the light of above introductory remarks, it is asserted that the existing self-regulatory mechanism is weak and inadequate to deal with the issues of news dissemination.

Secondly, it is emphasised that existing regulations are not uniformly applicable to print and electronic media, this brings in further difficulties in regulating news dissemination through electronic media.

1.2 Objectives of the Study

1. Firstly, to analyse the existing legal framework governing the media and to identify problems associated with it.

2. Secondly, to examine the limitations of the existing self-regulatory mechanisms.

3. Thirdly, to make a comparative analysis of different forms of media regulation in other countries and to draw best practices which might be useful for India.

4. Fourthly, to propose new regulations for the media.

1.3 Methodology

The methodology adopted for the present study will be doctrinal in nature as researcher undertakes a systematic analysis, exposition and critical evaluation of legal principle/doctrine/ concept. Based on this analysis, conceptual basis of the legal principle or doctrine will be

7 Aditya Kalra, Media in India : fine line between regulation and freedom (Dec. 3, 2012), http://blogs.reuters.com/india/2012/12/03/zee-media-in-india-fine-line-between-regulation-and-freedom/

4 highlighted and proposal for reforms will be put forward. The sources which will be relied upon for this study will be primary as well as secondary sources. Using appropriate reasoning technique, the relevant statutory laws covering the regulation of media and case-laws available in this regard will be analytically assessed. The study of primary sources will include legislations relating to media such as the Press Council of India Act, 1978; The Cable Television Networks (Regulation) Act, 1995; The Telecom Regulatory Authority of India Act, 1997; The Prasar Bharti Act,1990 etc. Further the Constitution of India, 1950 and the relevant laws relating to media in other countries will be relied upon. The secondary source material will includes books, articles, data published by public and private authorities and organizations, websites etc.

1.4 Scope of the Study

The scope of the research will be limited to print media and electronic media issues of subjects of media regulations. Further, it is limited to the Indian context. However reference will be made to other countries as per the requirements of the study.

1.5 Importance of Study

Today, it is seen that media is taking too much liberty due to the inadequate media regulations and existing system of self-regulation which in turn infringes the restrictions envisaged under Part III of the Indian Constitution. The beneficiaries of this research activity would be the law students, academicians and policy makers and legislators of this country.

1.6 Scheme of Chapterization

The dissertation comprises of 6 chapters.

Chapter 1: Introduction

This chapter gives a brief introduction to the concept of media regulations. The researcher also gives a brief account of the statement of problem addressed, objectives of the study, the methodology used for the research, scope of the study, importance of the study and the scheme of chapterisation.

Chapter 2: Literature Review

This chapter provides a brief overview of relevant literature, prior research articles, journals, internet sources, reports and recommendations relied upon in this research study.

Chapter 3: Media Regulation in India

This chapter provides an overview of evolution of media regulation. It analyzes constitutional aspects of media regulation and the existing regulatory framework of media in India.

Chapter 4: Approaches to Regulate the Media

This chapter analyzes the self regulatory bodies under present system and problems associated with it along with the concept of independent and state regulator.

Chapter 5: Media Regulation in United Kingdom and United States of America

This chapter would explore media laws in other jurisdictions like UK and USA so as to draw best practices that can be recommended for reformation of media regulations in India.

Chapter 6: Conclusion and Suggestions

This chapter the researcher expresses his observations made throughout his research and renders certain suggestions towards bringing about a better legislative framework that can boost the efficiency in the legal system through media regulations.

CHAPTER 2

LITERATURE REVIEW

1) Amrita Sarkar, Regulation of Television Content in India, 1 IJESLS (2015), http://www.ijesls.com/REGULATION%20TELEVISION%20CONTENT- %20Amrita%20Sarkar.pdf

The author in the given article evaluates the media regulatory bodies and argues that self- regulation is an indispensable yet partial solution to the problem. Since media nowadays has indulged in political and economic ends, it hinders the legal and moral standards of the society and profession.

Another significant issue raised by the author is of the initiation of New Economic Policy. With the coming of this policy, media encountered several changes and developments such as participation of private players, rapid expansion of channels, newspapers and radio stations. The capital-intensive and politically motivated end of media can also be traced to New Economic Policy.

The impact of broadcast media is larger than the print media. Thus, it demands different kinds of regulation. It was believed that the regulatory bodies can work informally and judiciary needs not to intervene. Though it resulted in an utter failure as any such developments and regulations affects the society politically, culturally and economically.

Author has briefly summarized the various regulatory bodies and raised their inefficiency. It was argued that though there is a range of such bodies but it lacks efficiency and co operation. In the so called veil of autonomy the government enjoys a great deal of power over them. Author highlights the significance of neutral and autonomous regulatory body in a transition stage. Author also rejected the Justice Leveson report with a profound argument that it is not a pragmatic idea to have a regulatory body without any member from media industry.

Though the author has very clearly and briefly tried to evaluate the media regulation in India but has not explained any strong alternative or roadmap for the same. She has only mentioned co-regulation model which was successful in Australia but has not explained this model in Indian scenario.

2) Shakuntala Banaji, Regulating the Media in India – an Urgent Policy Priority, The London School of Economics and Political Science Media Policy Project Blog (2013), http://blogs.lse.ac.uk/mediapolicyproject/2013/08/07/regulating-the-media-in-india- an-urgent-policy-priority/

In the given article the author has profoundly criticized the unethical journalism and self- regulation as an adequate panacea to the menace. As there is a rapid expansion of India’s media as well as there is a rapid transformation in its nature and ends. We have come over state-owned media to thriving of Foreign Direct Investment (FDI) in media. Since the introduction of New Economic Policy in 1991 Indian media has gone through several transitions.

Though there is an appalling exigency of an efficient regulatory body to supervise media platforms but it has been resisted by media houses in the name of freedom of speech, freedom of expression and freedom of press. According to media houses self-regulation will suffice for the national and public interest. However, this argument is sufficient to understand the corrupt objectives of media.

Author has mentioned the kind of capital and political intensives of media such as misreporting, defamation, corruption, paid news, and unethical exaggeration and sensitization of reports. Ishrat Jahan encounter case has been mentioned as an example. Arguing about the Press Council as the regulatory body of the so-called self-regulatory media, it has been proved to be a failure.Media has impeded its own role as an esteemed pillar of democracy.

Author addresses the issue in a very critical yet pessimistic way. The article does talk about the several issues and developments but not any concrete solution for the same. It also raises the concern of censorship and civic dissent for promoting and demoting particular brands, organizations or individuals but the author is satisfied that the current situation of corrupted, capitally and politically motivated media is not aiding to democracy in any ways.

3) Government of India Law Commission of India, Consultation Paper on Media Law(May,2014), https://www.lawcommissionofindia.nic.in/.../Consultation%20paper% 20on%20media%20law

The paper highlights the significance of media and freedom of the press as a crucial constituent of functioning democracy. As the fourth pillar of democracy, its significance has

8 also been highlighted by other three pillars i.e., Legislature, Executive and Judiciary. The role of media is imperative in the interest of nation and public thus it needs to be fair and neutral.

The significance of media becomes manifold during elections but not limited to them. There have been many concerns regarding the role of media during elections. Cases of defamation and false promotion are known. Questions on the objectivity of opinion polls were raised profoundly leading to restrictions on publishing of poll surveys. With the advancement of technology, nature of media and its influence has also advanced. Sting operations, paid news phenomenon and breaching privacy have become necessary evils in the business of Target Rating Point (TRP).

The paper talks about various Committees and its recommendations in a brief and comprehensive manner. It is believed that freedom of press is our Constitutional right but Fundamental rights come with Fundamental Duties. Various committees recommended self- regulation as the solution, establishment of statutory body to control print and electronic media and equipping the existing bodies with sufficient powers. Issue of cross-media holding has also been raised in the article. It argues that due to the heterogeneity of regulatory bodies, the impact of decisions hampers. There is a need of an autonomous and independent regulatory authority and sufficient infrastructure to govern the media and penalties as government controlled media might lack credibility.

Paper has raised important questions about the reliability of statutory bodies such as ways to strengthen the body, possible alternatives, eligibility and appointment of members, powers and their autonomy, uniformity of regulations for all types of media.

Paper has strongly argued that the freedom of speech and expression as mentioned in Art. 19(1) (a) is vital but it should not be politically or capitally motivated and not violate the right of privacy. The inefficiency of existing bodies has been highlighted and several important issues have been raised but the paper has not recommended the possible ways out of the issue.

4) Justice G.N. Ray, Statutory Regulation: The Indian Experience (May. 2, 2007), http://www.presscouncil.nic.in/OldWebsite/speechpdf/Statutory%20Regulation%20th e%20Indian%20Experience%20Kenya.pdf

The article comprehensively discussed the essence of media in a democracy, its persistently growing power, its expansion and intensified impact over wide society. Technology on one

9 hand has increased the command of the media on society and on other hand increased its social responsibility. Undoubtedly the freedom of speech and freedom of expression is the fundamental and prominent of human rights. The author argues that this is more vulnerable to be misused, thus, there is a need to impose regulations and guidelines.

Author has traced the history of press, its significance and various regulations and regulatory bodies. As our Constitution guarantees the freedom of speech and expression under Article 19 (1) (a), it also empowers to impose rational restrictions in the interest of integrity of the nation and morality of its profession. Although any kind of censorship or restrictions have always been resisted by media and held to be a bolt in legislation and judiciary.

Role of media and regulations of various different countries has been discussed in the article. As the report of the First Press Commission discussed in the article, it has suggested for an establishment of a Press Council comprising of media professionals headed by a person from the judiciary. The Press Council involves adjudicatory as well as advisory role. But the question of its efficiency has to be raised. It is indispensable for the media to be regulated that depends on the social, economic and political scenario of the nation. It is important for the regulatory body to be autonomous and statutory to ensure the morals and norms of the media.

Another very significant issue highlighted in the article is the Press Council of India Act enacted in 1978. It is important to understand that since 1978 there has been a vast change in the media and society. With globalization and LPG policy the role of corporate and private players have increased manifold. The need of amendments to achieve greater efficiency and effectiveness without hampering the freedom of press has been recognized by the Council as well as social activists.

According to the author, the role of regulatory body needs not to be punitive to maintain the standards of media. There should be soft penalization such as stopping to give advertisements, withholding the registration for a specific period. But it seems to be an ideal situation as suggested by the author himself. Though the author has comprehended the essence of media and its regulation but there is no definite solution to the issue has been provided. Also, it is doubtful to believe that the Press Council of India is independent from the influence of government, politics and corporate.

5) Lord Justicle Leveson, An Inquiry Into The Culture, Practices And Ethics Of The Press Executive Summary (Nov. 2012),

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229039 /0779.pdf

The report has comprehensively discussed the essence of media and its diverse roles by tracing the history of media and its roles during various struggles and movements. The need of media regulation to ensure the ethics of media of political and economic neutrality is indispensable for an efficient democracy. The media indeed enjoys special rights as guaranteed by our Constitution and it should not compromise with national and public interest.

The media makes those in authority accountable but as the situation demands there is a need to make media accountable for compromising with the norms and ethics of its profession. As the advancement of technology, media, its nature and its role has also been advanced leading to severe competition among media houses.

The role of contemporary media is not limited to dissemination of information. Corporatization of media has given it diverse wings. Article raises the issue of plural ownership, cross-media ownership and the role of regulatory institutes to curb the sensitization and exaggeration of information. The article profoundly argues that the foremost duty of the media is to make citizens inform thus any compromise, hidden interest and conflict is a matter of serious concern.

The report criticizes Press Complaints Commission (PCC) for its inefficiency. The body lacks autonomy, transparency and sufficient budget. Concentration of power and voluntary membership makes it even more difficult to be efficient. Although only regulatory bodies should not be held responsible as it is equally important to criticize media for lacking credibility and objectivity and its capital and political incentives.

The report discusses the proposed report by Lord Black of Brentwood which recommends the creation of independent new self-regulation body based on contractual relationship and independent fund providing body. Report recommends another model of self-regulatory system for entertaining individual complaints, power of investigation of beaches, inexpensive

11 arbitration, independence of the Chair and members and free from political and economic interests. The members should not be the one serving editors or government personnel. There should be regular reviews of breach of right of privacy and ethics of its profession.

The model provided is indeed extensively researched but there is a difference in the political, cultural and economic setup of India and other nations. Thus, it is significant to study the regulation policies of other nations but it needs to be critically evaluated. With the advancement of technology, the broadcast media has become more popular; hence, a concrete model is needed for the same.

6) Telecom Regulatory Authority of India, Recommendations on Issues Relating to Media Ownership (Aug. 12, 2014),

http://www.trai.gov.in/WriteReadData/Recommendation/Documents/Recommendatio ns%20on%20Media%20Ownership.pdf

The given report describes the essence of media esteemed as the fourth pillar of democracy. Media and democracy has evolved significantly over the years. The report highlights the right of freedom of speech and expression with the obligation of providing accurate and neutral information. It has also comprehensively discussed about the regulations and cases of foreign countries and recommended steps.

The media just like a banking system of country deposits facts and disseminate information which frames the opinion of public. Thus media should not be allowed to be dominated by any non-media industry for political or capital interest. Although the rightful use of freedom of speech and expression and amplifying the voices of masses is well known in Nirbhaya case, the Bofors Field Guns, The Jessica Lal case etc., there have been many occasions when these rights were misused for political and capital incentives.

The recommendations raised are not intended to restrict media from its rights but to ensure the dissemination of fair and objective information. The report raises the concern of cross-media holdings which has been resisted. The Parliamentary Standing Committee in its 47 th report has raised the issue of corporatization of media, desegregation of ownership, declining autonomy of professionals due to contract system and poor wages of journalists. Breaches of privacy, paid news, fake sting operations have also been raised. Also, the regulatory body dealing with the issues is inadequate and biased.

The report recommends disclosing contracts and agreements between media and non-media industries and any kind of monetary or non-monetary exchange which leads to influence on broadcasting or publishing material. Therefore, corporatization is deepening its roots in media where managers are more influential than the journalists in deciding the presentation of information with an aim to lead to the TRP business.

The report has also made distinction between ‘ownership’ and ‘control’. The former is defined purely as economic interest whereas the latter is the influence in decision-making. It is ‘control’ over management and content which is of greater significance in the context of media. Thus, it has been argued that cross-media ownership will not suffice to ensure the plurality of news.

The report recommends striking a balance between Article 19(1) (a) which guarantees the right to freedom of speech and expression and Article 19(2) which allows for reasonable restrictions in the freedom to protect the integrity of the nation. It recommends that the regulatory body should be transparent, independent of government interventions, represented by the members from media industry while heading by non-media personal. The report is a comprehensive study of media and regulatory bodies and recommendations of different countries but it rests to be a factual description of themes providing makeshift arrangements.

7) Evan Truth, Media Regulation in the United Kingdom,

https://www.article19.org/data/files/pdfs/publications/uk-media-regulation.pdf

The paper deals with the media regulation system of United Kingdom and highlights its salient features. The media regulation system in UK is regulated mostly by an independent body and others as statutory powers and bodies established by media houses itself. The paper describes the various existing codes of conduct for media and the system which ensures its adherence.

There are different bodies to regulate print and broadcasting media. The print media is mostly self-regulating body operating without any statutory rules. Whereas, the broadcast media is governed by two broadcasting acts which establishes several autonomous regulatory bodies. It is governed by statutory body and regulates both public as well as private media. It prohibits the broadcast of any program which lacks decency and accuracy, incites criminal mentality, impartial, religiously irresponsible and contains illegal content.

The Regulatory bodies enjoy the power to advice, warn and put fine on the broadcasters. It can also shorten or suspend the license of broadcasting unit in extreme cases. It does not review or censor the content before broadcast but may provide guidelines to the producers on request. Although the regulatory is set up the executive and government appoints its governors, it functions independently as an autonomous body. Its role is to set the standards rather to regulate. It aims to achieve the balance between right to privacy and public interest.

Another significant aspect of the regulatory body of UK is that the political broadcasting is governed by specific rules of legislation for specific election during elections. It functions with an idea of preventing unethical content and promoting right to freedom of expression.

The system relies on media houses to responsibly function under the codes of conduct, and self-regulatory bodies. It is a flexible body which is subject to constant change. The paper has very briefly yet comprehensively discussed the regulation system of UK. But it does not deal with the shortcomings and limitations of the existing regulatory bodies. In order to achieve an efficient regulation, it is necessary to overcome the shortcomings of the model.

8) Markandey Katju , Media cannot reject regulation , (May 2,2012),

http://www.thehindu.com/opinion/lead/media-cannot-reject regulation/article3374529.ece

The article has discussed about the menace of unethical use of freedom of press and raised the issue of regulation of media without hampering its right of freedom of speech and expression. Thus, striving for a balance between Article 19 (1) (a) which guarantees us freedom of speech and expression and Article 19 (2) which allows for reasonable restrictions is the need of hour as raised by the article.

Since the influence of media is very powerful, therefore, it has to be regulated in the interest of public and of media houses in the long run. The article recommends the regulation of media and has clearly distinguished between regulation of media and control over media. It argues there is no freedom when there is control whereas regulation allows the space of freedom with reasonable restrictions. Both print media and electronic needs to be regulated as any guaranteed right is not absolute and comes with responsibilities in the interest of nation and public. Instead of its duty to disseminate well-researched information and concentrating on socio-economic issues, media sells its ‘news’ by sensationalizing and exaggerating it.

The article argues that since the media houses are politically and capitally motivated and owned by corporate, thus, self-regulation will not suffice. Every sector including legislation and judiciary are regulated then media should also not resist for the same. Just as democracy grants us certain rights it also makes institutions accountable. The inadequacy of regulating bodies and inefficient self-regulating body demands a concrete system for the same. The article highlights the need of an independent regulatory body where the Chairman selected by The Vice-president, Speaker of the Lok Sabha and a representative of the Press Council.

Therefore, the article has discussed the need of media-regulation and inadequacy of regulatory bodies. It demands of an independent autonomous regulatory body but has not put forward the powers and codes it should contain.

9) Irum Saeed Abbasi and Laila Al-Sharqi, Media censorship: Freedom versus Responsibility, 7 JLCR, 21-25, (2015)

The given article comprehensively discussed the essence of freedom of media, media regulations and restrictions imposed on media during rebellions. The concerns over media are not limited to any particular nation rather it has become a global phenomenon. Thus, the article discusses the issue in the context of several countries.

The focus of the article is not only the censorship imposed on media on several occasions but also the responsibility of media as working for the interest of public and nation. Censorship has always been resisted and seen as a stain on the democracy as it aims to quieten the voices of opposition. It is still prevalent in 21 st century and many countries lack the right of freedom of press, speech and expression. Thus, it is not only during wars and emergency that media faces restrictions and censorships.

Although, this freedom is indispensable for a functioning democracy but it is equally important to use this freedom responsibly and without compromising with the ethics of media and journalism. The advancement of technology has not only expanded the deepening reach of media but has made it more difficult to restrict and regulate the flowing information. It is important to distinguish between the objective information and sensitized, exaggerated and partial information.

Thus, the article does discuss the essence of media and its freedom and also acknowledges the need to regulate the same. But it has not discussed about the regulatory systems of media

15 which is a very significant aspect of the debate. The paper just remains a moral and historical explanation of the issue without considering the existing facts and future prospects.

10) Dr. Eun-Suk SA, Distorted Democracy and Freedom of the Press under Capitalism, 3 IJHS 161, 167-169 (2013)

The article examines the press freedom and democracy through the context of Korean society. It is important to consider these interdependent concepts to understand the functioning of press freedom in democracy. The evolution of freedom and related concepts has been traced historically and globally.

The press has been rewarded with freedom for the benefit of citizens and smooth functioning of democracy but it mainly serves the interest of political and capital elitist. With the globalization, advancement of technology and expansion of neo-liberalism, the issue of freedom of press exists globally.

With the analysis of press freedom theories and empirical data, it has been found that freedom of press does not function properly in democratic society particularly non-western nations, freedom of press can be easily corrupted, and it is more or less controlled by elitist. The article discusses the theories and models of press freedom. According to classical liberal theory, free press is the one which is free from government interventions and market forces. The western philosophical theory dominates the concept of press freedom.

The article discusses the freedom of press in the context of Korean society which has both authoritarian as well as democratic system and thus provides for a better case study. It traces the historical development of press freedom and highlights the theory of Libertarian, Social responsibility, Soviet communist, and Authoritarian but what we need is a development theory to explain transitional phase of the society. According to the Korean journalists survey market liberalism restricts the ethics of press. It becomes more complex with the expansion of capitalism and globalization. Instead of concentrating on the interest of the nation it works for the interest of elitist. Thus it is important to understand the concept of privatization, deregulation and commercialization in this regard.

Therefore, the article argues for setting up new standards for the freedom of press while considering global differences. Thus, the article has comprehensively traced the freedom of press, democracy and regulations in an academic way. It is significant to understand the

16 concept historically and theoretically but it is equally requires to understand it pragmatically to arrive at a concrete solution.

11) Hugh Tomlinson & Matrix Chambers, The New UK Model of Press Regulation (Mar. 2014), http://www.lse.ac.uk/media@lse/documents/MPP/LSE-MPP-Policy-Brief-12- The-New-UK-Model-of-Press-Regulation.pdf

Media, its influence and regulation has become a global concern. The policy brief discusses the British media, its development and establishment of regulatory bodies. It traces the historical development of British media and its regulatory bodies and also highlights the recommendation of Leveson report.

The British media for a long decade remained an independent body without any state regulation. But the misconduct and losing objectivity of media demanded for its regulation and led to the establishment of Royal Commissions and Press Complaints Commission which are found to be inadequate and ineffective.

The major events of press regulations and its standards are chronologically explained in the article. The declining quality and reliability of media led to the establishment of self- regulatory bodies to propose code of conducts and impose reasonable restrictions. But the Leveson report reviewed this and raised the concern of inefficient self-regulation. Sir Brian Leveson recommended for an independent and efficient self-regulatory system, without any political interference and ensuring publishers to join the self-regulator. The self-regulatory body implements the code of conduct, hears the complaints against alleged breaches, promoting efficient dealing with complaints internal of the media houses, imposing reasonable restrictions, providing fair and inexpensive arbitration. The independent board comprising of individuals outside of press, former editors and academic journalists would head the self-regulatory body. Though the Leveson report recommends for voluntary participates but also recommends ensuring the maximum participation.

The recommendation of Leveson report were not accepted entirely and led to the establishment of Royal Charter where the Queen is only formally connected and does not enjoy any decision-making power. However, the state as well as the parliament cannot change the Charter without approving it from the Recognition panel. Even the state cannot order for pre-publication censorship because the self regulator can refuse to comply.

Policy brief also describe the essence of media is well known, the freedom of media is very significant. The British model of self-regulatory system offers its media for a great amount of freedom and there is least interference of state. But ultimately it depends on the media houses that how well they fulfill their responsibility. The article seems to be written from one-sided view of Leveson report without discussing its shortcomings.

12) Adam Candeub, Media Ownership Regulation, the First Amendment, and Democracy’s Future (Jan. 1, 2008),

http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1360&context=facpus

The debate over media regulation system is always a complex one. The article discusses the media ownership regulation of the world’s strongest democracy, the United States of America. The main focus of the article is the Federal Communication Commission (FCC), an independent agency which regulates the international and interstate communication. It aims to achieve a competitive market.

The article is holds critical views on the functioning of FCC as it fails to balance the ownership restrictions demanding by consumers and the demand of deregulation by the media industry. It argues that the main function of is to strengthen the media and its functions for a better democracy rather than identifying the ideal number of media channels. Thus, FCC should aim to amend the news production by altering its quantity and nature. It has historically traced the establishment of FCC and its roles.

The article discusses the ownership regulation of FCC, analyses its failures and inefficiency, failure of diversity as a regulatory approach, presenting another model for the regulation of media ownership as agency theory and monitoring costs, demands for a unified code of media ownership regulation which diagnose it not as an economic but of political nature, and throws light on the future prospects of the media.

The article highlights the debate of democracy-based vs. social value regulation and ownership. Whereas these models are opposed by market-based analyst who argues that the media should contain what the majority demands. The judiciary also stated that it is important to reduce monopoly control over ownership and to encourage diversity. It has been argued that it is not the legislature but the regulatory system which should be questioned. The state intervenes in media through subsidies and structural regulations. The FCC aims to promote

18 diversity and competition, where it sees diversity not in terms of viewpoints and opinions but as the diversity of ownership which it believes would increase the diversity of viewpoints, in turn.

The article argues that media regulation should maintain the political nature instead of its market-oriented nature. It is highly critical of FCC as a regulatory body and also recommends for the political nature of media ownership without realizing its short comings.

CHAPTER 3

MEDIA REGULATION IN INDIA

3.1 Evolution of Media laws in India

The printing press was brought to India by a matter of luck. The King of Portugal had dispatched a printing press and the required technicians, granting a request of the Emperor of Abyssinia. It so happened that the journey halted in Goa and the person responsible for the delivery never made it to the intended destination, fell sick and died in Goa on 22 nd September 1562. The printing for literature meant for missionary work in Abyssinia was carried out in Goa, and the printing press remained in Goa and flourished in the country. 8

3.1.1 The first printed newspaper

Though there had been informal reporters and other forms of communications, there was no such regulation upon media before the British rule began after the Battle of Plassey in 1757. The Bengal Gazette/ Calcutta General Advertiser was the first weekly newspaper to be started in India by journalist James Augustus Hickey in 1780. This paper became popular for its vociferous criticism of the British Government in India and was thus, cracked down upon and seized in 1782. Following Mr. Hickey, Mr. Duana, editor of ‘Indian World’ was the next journalist who was deported for his journalistic tendencies, following conflicts with the Governor General Lord Cornwallis. 9

3.1.2 The age of censorship and licensing begins

In 1799, Lord Wellesley introduced the Censorship of Press Act, 1799 and with this began the saga of media’s oppression. The idea was to curtail the spread of anti-English feelings and the spread of French invasion by ensuring that all the publications were subjected to prior Government scrutiny, before they were made available to the general public. With time this Act covered all aspects of Press publications such as newspapers, books, magazines and pamphlets. Censorship and Licensing were two European institutions introduces into India, which subjected media to oppressive legislatures, fearing its power to spread bulletproof ideas that could not be killed, once they had found their way into the minds of the oppressed. It was

8 CA Rajkumar S. Adukia, Media Laws of India (Feb. 22, 2016), http://www.caaa.in/image/media_laws.pdf. 9 Id. 20 not until after 1807 that the rules were slightly relaxed and the press could carry out their work with lesser worries, under the leadership of General Warren Hastings, pre-censorship was dispensed with in 1818, as his views were progressive in nature. 10

The next tool of oppression used to curb the freedom of press media used by the British Government was the enactment of the Licensing Regulations Act, 1823 under acting- Governor General John Adams, who had reactionary views. After the passing of this Act, all publishers were required to get their press licensed by the Government. Defaulters under the purview of this Act had to shell out Rs 400 with the added near possibility of their newspaper publication being ceased by the release of a mere gazette of the Government.

The most notable victim of this Act was Raja Rammohan Roy’s publication Mirat-ul-Akhbar, which ceased publication after the crackdown of the Government. He was one of the most outspoken critics of the British Government as well as the social evils existing in the country, and protested unflinchingly against the Act, along with Dwarka Nath Tagore. However, despite widespread protests, the act got passed and came into force in 1823. These licensing and censorship laws were in existence till 1835, when Lord Charles Metcalfe with the help of the Law member of the Government, Lord Macaulay, liberated the press from these bindings. For his liberal views, Lord Macaulay was recalled, but he forever found a space of respect among many thankful journalists as a Hall was created in his honour in Calcutta. 11

The licensing regulations were replaced by the provisions of the Metcalfe’s Act that ‘required the printer and publisher of every newspaper declare the location of the premises of its publication.’

3.1.3 The Gagging Act

However, this rather free environment wasn’t enjoyed by the press industry for a long time as the British Government found reasons for enacting draconian laws after the 1857 revolt. In the wake of the developments that occurred during and after the mutiny, the Vernacular Press Act, 1878 was passed under the governance of Lord Lytton who vehemently opposed the freedom of the press. So suppressive was this act that it was also commonly referred to as ‘The Gagging Act’. According to the provisions of this Act, magistrates, with the prior

10 Id. 11 Reba Chaudburi, The Story of the Indian Press , Feb. 12, 1955 at 347-349.

21 sanction of the Provincial Government, could bind publishers from publishing anything which could be considered to incite violence or feelings of rebellion against the British government. The Government also had boundless powers to cease the publication of any press that it found even merely irksome to its governance. 12

The Magistrates could demand for fixed security money and had the power to shut down the press and seize all the machinery. The most noticeable change that occurred was that the Amrit Bazaar Patrika, which used to be a bilingual newspaper, turned into English daily overnight. But, not all newspapers could adapt so quickly and many vernacular publications perished under this act. Lord Lytton was recalled so that Lord Ripon could take his place. Lord Ripon had liberal views like Lord Metcalfe, and advocated the abolition of the oppressive legislation. It was finally repealed under his watchfulness in 1882. Cases were also instituted against popular newspapers such as Som Prakash, Samachar, Dacca Prakash and Dacca Mihir. 13

3.1.4 The Newspaper (Incitement to Offences) Act, 1908

Following the repealing of the Vernacular Press Act, the Newspaper (Incitement to Offences) Act, 1908 was promulgated by Lord Minto, and it gave the magistrates power to confiscate press property including all the machinery if it deemed the published material capable of inciting murder/acts of violence. The police also had powers to issue warrants before the order could be made absolute. Although the newspapers were allowed to appeal to the High Court 15 days after action was taken against their newspapers. Publications such as Yuganter, Sandhya and Bandemataram had to stop their publications on account of the stringent provisions of this Act.

3.1.5 The draconian legislation Indian Press Act, 1910

To continue efforts of decapitating the press in order to curtail the spread of Nationalist sentiments, the Government came up with the Indian Press Act in 1910. This Act proved to be one of the worst nightmares for newspaper publishers, printers and editors as it gave the local government the power to demand for a security of not less than Rs 500 and not more than Rs 2000 and this could be forfeited by the government incase in found any of the published material to be seditious and contrary to positive sentiments towards the British Rule. Fresh

12 Id. 13 ADUKIA, supra note 8. 22 registration upon cancellation was allowed if an amount not less than Rs 1000 and not more than Rs 10000 was deposited.

Since these security deposits were so exorbitant, many newspapers went out of print. “The Press Association of India in a memorandum on the operation of the Press Act of 1910 stated that nearly 1,000 papers had been prosecuted under the Act. The total amount of securities and forfeitures which went into the hands of Government during the first five years of the Act was nearly Rs 5 lakhs according to another official return made in 1918. Over 500 publications were proscribed under the Act.” 14

3.1.6 Press Committee, 1921

In 1921, a Press Committee was instituted under the chairmanship of Tej Bahadur Sapru to look into the existing press laws and their functionality. On the recommendation of this committee, the acts of 1908 and 1910 were repealed, which paved way for a better environment for newspaper publications for a short while. 15

3.1.7 The resurfacing of a draconian legislation

One of the most tyrannical acts that surfaced under the British Rule was the Indian Press (Emergency Powers) Act, 1931. The Civil Disobedience Movement was fast catching the attention and more and more Indians were willingly joining it, with their nationalist sentiments having risen to its peak. The government intended to curb this and one of the solutions it found was to revive the position of the press under the Indian Press Act of 1910, and thus, enacted the Indian Press (Emergency Powers) Act, 1931. 16

This Act gave unfettered powers to the Provincial Government to forfeit the security deposits under specified circumstances and also required deposits of not less than Rs 1000 and not more than Rs 10000 as an advance deposits, as could be decided by the magistrate. It gave the magistrates powers to confiscate the security deposit, either in part or full, and another deposit of values mentioned before had to be deposited again in case of forfeiture or cancellation of declaration of the newspaper presses, if the magistrate found the newspapers to be publishing articles which spoke ill of the British government and encourage people to actively participate

14 CHAUBURI, supra note 11. 15 ADUKIA, supra note 8. 16 The Press (Emergency Powers) Act, 1931, No. 13 (India). 23 in the Civil Disobedience Movement. 17

This Act was introduced for the sole purpose of attacking the journalists who were also political leaders, and could agitate the masses to rebel against the British forces. Even the Customs officers and post officers were empowered to delay the delivery of certain packages. Thus, this Act marked the return of exorbitant security deposits and its forfeitures, made declarations of newspapers vulnerable to cancellation on account of matters that were considered to be objectionable by the British Government. This Act proved to be one of the most powerful weapons for those British Administrators who tried to curb the spread of nationalist messages and disallowed the printing of notices for processions, meetings, the speeches of nationalist leaders and reports of political incidents. The Foreign Relations Act, 1932 was also enacted by the British government, as it felt insecure by the criticism in adjoining states and feared for its reputation and relations with friendly foreign countries.

Period where an interim government was discharging duties in 1946, “When in September 1946, a popular interim Government was installed at the Centre, almost immediately, the extensive powers for the control of the Press assumed by the Government of India under the Defence of India Rules came to an end. However, in 1946-47 many of the Provincial Governments were compelled to resort to Ordinances to bring the communal situation under control. These Ordinances were subsequently replaced by emergency legislation by the Provincial Governments.” 18

3.1.8 Media laws in post independent India

In 1947, a Press Enquiry Committee was set up by the Government of India under the chairmanship of Shri Ganganath Jha, to look into the Press Laws in place and recommend required amendments to give the press the freedom that was due to them. The Committee made the following recommendations:

1. The Indian States Protection against Disaffection Act, 1922, and the Indian States Protection Act 1934 and The Indian Press (Emergency Powers) Act, 1931 ought to be repealed.

17 ADUKIA, supra note 8. 18 CHAUBURI, supra note 11. 24 2. A more comprehensive law in place of the Foreign Relations Act, based on reciprocity needed to be enacted.

3. Section 124A of the Indian Penal Code needed to be modified and section 153A by explanation, ought to be excluded for a more balanced socio-economic environment.

4. Section 144 of the Code of Criminal Procedure must be made inapplicable to the Press.

5. If actions had to be taken against the Press in exercise of the Emergency Powers, prior consultation should pre-empt the exercise of such powers between the Provincial Governments and Press Advisory Committees.

Although some of the recommendations were found to be constructive, yet it could be seen that some aspects of the draconian legislations had also been included by the Committee, which ran contrary to the idea of freedom of the media.

Following the constitution and recommendation of the Press Enquiry Committee, many important acts were enacted to regulate the working of the press. The Press (Objectionable Matters) Act, 1951 defined what constituted ‘objectionable’ matter and empowered the government to demand and forfeit security in case objectionable matters were published. Those aggrieved were given the right to demand a trial to present their case in front of the jury.

The first Press Commission of India was appointed by the Government of India on 23 rd September 1952, which consisted of 11 members under the able chairmanship of Justice Rajadhyaksha. The most notable recommendation was setting up of the Press Council of India that would consist of 13 working Indian journalists of standing, including working editors. The primary function of the Council would be to ensure and safeguard freedom of the Press and make efforts to promote professional ethics and standards. The freedom of media suffered a major setback when Emergency was imposed in 1975. However, after the defeat of the then ruling party in the General elections in 1977, it was unanimously recommended by the

25 Council that the practice of curbing media’s freedom never ended on a good note and hence, must be avoided even in disputed areas such as Jammu and Kashmir. 19

The most important aspect of freedom of media is constituted in Article 19 of the Indian Constitution as it allows the media ultimate freedom in the form of ‘expression of free speech’. However, this provision is subject to limitations as prescribed under Article 19 (2) in the interests of public.

Apart from print media, other emerging forms of media have also been subjected to regulations. The Cable Television Networks (Regulation) Act 1955 was enacted to regulate the cable television, regulate the prices, number of subscribers, etc. Since films come under the purview of Broadcast media, they are subjected to laws such as The Cinematograph Act 1952 under which, a Board (now Central Board of Film Certification) with advisory panels at regional centre’s have the power to give certificates based on the extent of explicit content and sanction the restricted/unrestricted audience accordingly. 20

Further, the Copyright Act 1957 made it illegal to commercially exploit the original literary, dramatic, artistic works and cinematographic contents as per the owner of the Copyrighted material, subject to provisions of this act. At the same time, the unauthorised copying, selling, hiring of copyrighted works was made a cognizable offence under this Act. 21

Thus, in this age of media dominance, it becomes crucial to study the evolution of the media laws as they exist today, unfold in stages. This helps us to put the current media laws in perspective, and allows a more substantiated study.

3.2 Independence of Media and its Regulatory Agencies: An Overview of PCI & Prasar Bharti

Autonomy and independence of media is very important in development of a democracy as media is an interface between public and government. Press Council of India and Prasar Bharti are regulatory agencies for media in India

19 Puja Mondal, History and Development of Indian Press and Press Acts , http://www.yourarticlelibrary.com/history/history-and-development-of-indian-press-and-press-acts/23717/ 20 Id. 21 Id. 26 3.2.1 Press Council of India

Press Council of India was established under Press Council of India Act, 1978. The objective of the Act is to preserve the Freedom of Press and improving the standard of newspaper in India.

Constitution of PCI

Press Council consists of a chairman and 28 other members. Out of 28 members, 20 members represent the press and are nominated by the press organizations or news agencies, 5 members are from two houses of Parliament i.e., Lok Sabha and Rajya Sabha and 3 members represents culture, literary and legal field as representative of Sahitya Academy, University Grants Commission (UGC) and Bar Council of India (BCI) respectively. Term of the member is 3 years and retiring member shall be eligible for renomination for maximum one term. 22

Objectives and Functions of the Council

Objectives of the Council have been laid down under Section 13 of PCI Act. The primary function of the Press Council is to preserve press freedom and to improve the standard of newspapers and news agencies of India. To fulfill the same, Council will perform the following functions 23 :

1. To develop a code of conduct for newspaper/news agencies to improve professional standards.

2. To promote public service and sense of responsibility.

3. To help newspaper/news agencies to preserve their independence/autonomy.

4. To carry research on foreign newspaper with respect to their circulation and their impact etc.

Powers of Press Council of India

Section 14 of Press Council of India Act, 1978, gives details regarding power of the council to censure. Every inquiry conducted by Council shall be deemed as judicial proceedings. Whenever any complaint is being revived and there is sufficient reason to believe that

22 https://www.presscouncil.nic.in 23 Id. 27 newspaper has worked against the journalistic standards or ethics or journalists have committed misconduct. Council after following principle of natural justice after giving opportunity of being heard can set up an inquiry committee to investigate the matter as per the regulations under the Act and if the Council is satisfied with the reasons which has to be resolved in writing can censure the newspapers/journalists/editors. 24

Power has been granted to Press Council of India in order to maintain the true spirit of journalism i.e. accuracy, fair and unbiased news. Section 15 of Press Council of India Act,1978 gives power to Council to work as a civil court during summons and examining persons, receiving evidence and inspection of documents but Council has no power to compel any newspaper/journalists to disclose the source of any news or information published by them. 25

In C.S. Kalra vs. Arun Shourie 26 , a report published in Indian Express contains filthy words used by Deputy Prime Minister was challenged. Editor contended that complaint has no locus standi. Complainant contention was that it was detrimental to public interest. Council held editor could have published the report after excluding the filthy words. Hence, any interested person can lodge a complaint if filthy/vulgar words are published in any form.

In A.K. Shukla vs. Comparative Physiology & Ecology27 , Council held that it does not have jurisdiction to inquire a matter pertaining to breach of contract. In Dr. S.V. Champure vs. Midday 28 , complaint was already pending in the court. So, council dropped further inquiry into the matter under Section 4 (3) of PCI Act.

PCI: An Analysis

Norms of Journalistic conduct by Press Council also states that objective of journalists is to impart views, news, comments on matter of public interest in an accurate, unbiased and fair manner. Press Council itself stated that it lacks authority and power to direct parties to publish

24 P Josephine Baba, Media Law and Ethics, http://wecommunication.blogspot.in/2014/09/the-press-council-act- 1978.html.

25 Deepak Rawani, The Press Council of India, LINKEDIN (Jun.6, 2016), https://www.linkedin.com/pulse/presscouncil-india-deepak-rawani. 26 (1990-91) A.R. 100 27 (1990-91) A.R. 100 28 (1989-90) A.R. 181 28 material regarding enquiry and adjudication. Lack of punitive power with Press Council has refrained the Council to exercise control over such publications.

In Ajay Goswami v Union of India 29 , Supreme Court directed Centre Government to amend the act in order to meet the criteria but nothing has happened in this regard so far.

Press Council of India was enacted in 1978 after the freedom struggle from British rule and post-independence emergency that too when technology was not so advanced and when it was thought that irresponsible media is far better than controlled media. But now in 2016, they have drastically changed when we take newspaper, either it would be full of advertisement or Page 3 news. Yellow journalism and sensationalization is at rise and content on newspaper has gone down incredibly. Hence there is an urgent need to entrust PCI with wide power as now it has become like a toothless tiger which has failed to uplift the professional standard, an objective for which the Council had been established. 30

3.2.2 Prasar Bharti : An Overview

Objective of Prasar Bharti Act 1990 was to provide autonomy to Doordarshan and All India Radio (AIR). In 1990, Prasar Bharti Act was passed based on Verghese Committee Report, 1978 but it started functioning from 2002. After Supreme Court judgment on airwaves, where airwaves was held to be a public property distinct from government, advent of private channels affected the popularity of Doordarshan. Hence, Central Government introduced a Broadcasting Bill to establish an independent public autonomous representative to regulate the use of Airwaves. 31

Constitution of Board

Broadcasting Council and Parliamentary Committee manage electronic media. Section 3(4) of the Act confers management powers to Board. The Board will consist of 15 members. Chairman along with 6 members would be eminent public personalities and will be part time members. President of India would appoint the non official members for term of 6 years on

29 (2007) 1 S.C.C. 143 (India). 30 Surabhi Kumari, Press Council of India : A Critical Analysis, BHAR. LAW. REV., Aprl-Jun, 2015 at 133, 134. 31 Sakshi Sachar, Formation of Prasar Bharti, (Apr. 17, 2010), http://sakshisachar.blogspot.in/2010/04/formation-of-prasar-bharti.html. 29 recommendation of committee consisting of Chairman Rajya Sabha, PCI Chairman and a nominee of Indian President. 32

Broadcasting Council and Parliamentary Committee

Section 14 of Act empowers Broadcasting Council to advice Corporation when complaints have been received with respect to staff matters and programs functioning of the Corporation. 15 members of Lok Sabha and 7 members of Rajya Sabha would be part of Parliamentary Committee. 33

Prasar Bharti Act Amendment: An Analysis

Bill amended Section 11(2) of the Act and hence giving effect to regularize large number of employees in Doordarshan & Akashvani other than some specified posts and one being deemed deputation to Prasar Bharti till their retirement. 34 Prasar Bharti shall have disciplinary as well as supervision powers over their employees but cannot dismiss or impose compulsory retirement from service as their powers can only be exercised by Central government.

Although, it is said that Prasar Bharti is an autonomous body but government interferes in day to day affairs of Doordarshan and All India Radio.

Hence, it is required to make Prasar Bharti a constitutional body in the lines of Election Commission. As till the time employees of Prasar Bharti controlled by Ministry of Personnel with regard to recruitment, the autonomy and independence of Prasar Bharti can be revived. 35

3.3 Freedom of Press under Indian Constitution

The media is hailed as the fourth pillar of a democracy and is also referred to as the ‘Fourth Estate’, the term first so coined by Thomas Carlyle in 1841 to refer to the reporters gallery. The freedom of media is an essential feature for the working of a democracy as the media works as the eyes and ears of the ordinary citizens in a nation. The citizens have a right to know about the important developments in their country and the ordinary citizens do not have

32 Id. 33 Id. 34 PTI, Parliament passes bill to amend law governing Prasar Bharati, GUARDIAN NOW (Dec. 20, 2011), http://www.governancenow.com/news/regular-story/parliament-passes-bill-amend-law-governing-prasar- bharati#sthash.exoVXBC5.dpuf 35 D P Satish, The autonomy of Prasar Bharti is still a joke , NEWS18 (May. 3, 2014, 2:25 PM), http://www.news18.com/news/politics/the-autonomy-of-prasar-bharati-is-still-a-joke-685346.html. 30 access to the information that keeps updating. The media works as the mediator between the general public and the government.

Communication and freedom of press is essential because without expression there would be no society at all, as communication is the essence of society. 36 Freedom of speech promotes pluralism as people with different opinions are given an opportunity to voice their opinions and this in turn creates a pool of information. Through unbiased reporting of the events the media has the power of mobilising the people’s thoughts and it is the freedom of speech and expression that allows even the most oppressed, powerless group of people, who may constitute a minority, to raise their voice and have it heard.

The media by its active reporting also plays the role of a watchdog of the politicians, and makes them more accountable to the people who are to elect them. The media has the power to alter the perspective of the people regarding their leaders, both in a positive or a negative way. The freedom allowed to them gives them the space to practice their profession fearlessly and encourages them to promote transparency in the political system. 37

The people in power are also watchful of their conduct knowing that they are under the scrutiny of the public through the eyes of the media. Not only does it question the corruptive forces in elective public offices but also in the judiciary where a backlog of cases, vacant positions for judges, delay in hearing has resulted in many innocents languishing in jails as they await their trial, even for having committed petty crimes or sometimes, no crime at all.

Our Constitution allows the media freedom to carry on their practice without interference by State authorities or any such powerful as the freedom of press is implied under Article19(1)(a) of the Constitution. Article 19 talks about the right to freedom that a citizen is guaranteed, and clause (1) (a) pertains to the freedom of speech and expression under which the freedom to publish, broadcast and propagate for the press is also included. The word ‘press’ isn’t explicitly mentioned and this was pointed out in the Constituent Assembly Debates while the framing of the Constitution.

Thus, although no special provision was made in the Constitution for the press yet, their freedom was constitutionally safeguarded under Art. 19(1) (a). This is also supported by the various Supreme Court judgments since the Constitution came into existence. Two leading

36 LON L. FULLER, THE MORALITY OF LAW 202 (Yale University Press 1964) 37 Id. 31 case matters in regard to this aspect of freedom of media being implied in Art. 19(1) (a) are Romesh Thapar v State of Madras 38 and Brij Bhushan v State of Delhi 39 .

In Romesh Thapar there was a challenge against an order imposing ban on the circulation of an English daily ‘Crossroads ’. The order challenged was one passed by the Government of Madras under the section 9(I-A), Maintenance of Public Order Act, 1949 which authorized the imposition of restrictions for the wide purpose of securing public safety and public order. The Apex Court held that this order didn’t come under the purview of Art. 19(1)(a) and was thus held as unconstitutional and struck down as it curtailed the right of freedom to speech and expression, even though it wasn’t considered to be dangerous to the foundations of the State.

In Brij Bhushan, a pre-censorship order that was passed against the RSS mouthpiece ‘Organizer’ against which there was an order passed by the East Punjab Safety Act, 1949 for the necessary purpose of “preventing or combating any activity prejudicial to the public safety or the maintenance of public order”. However, the Supreme Court held that going by the facts of the matter and the provision laid out, Section 7(i)(c) of the East Punjab Safety Act, 1949 did not fall within the purview of Article 19(2) [reasonable restrictions on the right of freedom of a citizen].

3.3.1 Restrictions on the media

This brings us to the restrictions that the Constitution puts on the right of the press. No right is absolute, and this has been reasserted in the fact that Article 19(2) has put ‘reasonable restrictions’ on the rights guaranteed in Art. 19(1)(a). It was the 2 nd Amendment to Art. 19 that came in 1963, which added that the Government had power to restrict freedom of free speech and expression in the interests of the ‘sovereignty and integrity’ of India. The term to be focused on is ‘reasonable’ and Supreme Court judgments in the past have upheld the idea that only those restrictions that seemed reasonable enough, i.e. restrictions imposed on the media which, if not applied, posed a threat to national security or could possibly overthrow the State, were to be applied, and not otherwise. If the judiciary isn’t convinced that the restriction is necessary, the Apex body strikes it down. This has been observed in the case of Brij Bhushan whereby the Section 9(I-A) was curtailing the right of free speech illegally. This

38 A.I.R. 1950 S.C. 124 (India). 39 A.I.R. 1950 S.C. 129 (India). 32 section was held to be imposing restrictions for the wide purpose of securing public safety and public order and fell outside the scope of reasonable restrictions. The grounds for which reasonable restrictions could be placed according to the 2 nd Amendment to the Constitution are 40 :

i. sovereignty and integrity of India ii. security of the state iii. public order iv. decency and morality v. contempt of court vi. defamation vii. friendly relations with foreign state, and viii. incitement to an offence

Section 124-A of the Indian Penal Code (IPC) punishes sedition in the form of punishment lasting anytime between three years and life imprisonment. In pre-independence India, any expression of disloyalty or ‘disaffection’ was construed as an act punishable by law. This provision in law does put restrictions over the freedom of media to publicize its critique of the government. However, such a sensitive treatment changed somewhat post-independence. Initially, sedition was envisaged as one of the exceptions under Art. 19(1) (a).

In Kedar Nath Singh v State of Bihar 41 the Supreme Court examined the scope of Section 124-A IPC and held that if the expressions of disloyalty are accompanied by an act that may incite violence or disturbs public peace, only then could a case of sedition be made out. Although the Supreme Court ruled against the repeal of the Act, there have been demands for the same, after seeing the cases against Arundhati Roy, Syed Shah Geelani and cartoonist Aseem Trivedi, who were charged under this section.

Although the Media has been given immense power to publish and broadcast freely yet it subjected to restrictions. Pre-censorship as a method of restricting the media’s freedom has been upheld as valid and necessary in exceptional cases by the Supreme Court. Although it is only applicable in extraordinary cases where, if the media’s reporting was not censored, it could pose a danger to national security or go against the interest of justice of a citizen. In our

40 INDIA CONST. art. 19, cl. 2. 41 A.I.R. 1962 S.C. 955 (India). 33 country, the Indian Cinematograph Act, 1952 justifies prior restraint on media. It was pointed out that the only difference between censorship and pre-censorship is that of the stage at which the State intercedes its regulations between the individual and his freedom.

The Supreme Court has also justified pre-censorship in visual media in the case of Ministry of Information and Broadcasting, Government of India v. Cricket Assn. of Bengal 42 whereby it was decided that movies cater to a mass audience who are not always selective with what they watch hence, it cannot be equated with other modes of existing communication. Since the movie is so accessible, it cannot be allowed in a free market place just as the newspaper or magazines. Thus, in such modes of communication, pre-censorship was considered not only desirable but also necessary. With regards to publication of news, pre-censorship was held to be valid in the Sahara India Real Estate Corpn. Ltd. v. SEBI 43 .

However, while the Supreme Court has allowed restraints on the media, it must be kept in mind that unnecessary restriction is never encouraged. For instance, even though the Sahara India Case has presented the possibility of restraint over publication by the media yet at the same time it was also held that the principle of proportionality may be applied to prevent excessive restrictions on the media.

After the judgments in the cases Sakal Papers Pvt. Ltd. v. Union of India 44 and Express Newspaper (P) Ltd. v. Union of India 45 an anomaly was seen. State cannot impose any restrictions on a freedom, if it has the effect of directly restricting another freedom and conversely, a citizen cannot claim that the exercise of a freedom should be unfettered by any restriction which the State would be entitled to impose in respect of another freedom. In order to find a solution to this anomaly, the direct impact doctrine was developed by the courts. According to this doctrine, if the State wishes to put a restraint over the media as a business under Art. 19(1)(g) then it cannot put a restriction over the freedom of press under Art. 19(1) (a) by affecting its circulation, the number of pages it can have or limiting the number of subscribers it can have. While this was so, the a law acted as a regulatory of the media as a business having some consequential impact on its freedom of expression, then it would not be declared unconstitutional being in violation of Art. 19(1) (a).

42 A.I.R. 1995 S.C. 1236 (India). 43 (2012) 10 S.C.C. 603 (India). 44 A.I.R. 1962 S.C. 305 (India). 45 A.I.R. 1958 S.C. 578 (India). 34 Thus, although the media is guaranteed freedom by the Constitution yet, this freedom comes with certain responsibility and restraint. However, whenever the power of the media has been restrained the restrictions have only been allowed if they were considered necessary by the judiciary of the country.

3.4 Judicial decisions on Freedom of Press

The freedom of press is considered essential for the working of a healthy democracy and understanding the importance of unrestrained media, the right to free speech and expression has been constitutionally guaranteed under Art. 19(1) (a) to the media. But at the same time, the makers of the legal framework also realised that absolute power can work against the idea of justice and even pose a threat to security of a citizen, or even to the nation, in case of reporting of sensitive issues. Thus, Article 19(2) has put reasonable restrictions over the freedom of free speech and expression, which the media is subjected to. The judicial precedents will show that the Supreme Court has always upheld the freedom of the media save for those cases where restriction was considered reasonable and necessary.

Beginning with the idea of the media’s right to speech being constitutionally guaranteed, the two leading cases are Romesh Thapar v. State of Madras 46 and Brij Bhushan v. State of Delhi 47 . In Romesh Thapar the Supreme Court had quashed an Order passed by the Madras Government issued under Section 9(I-A), Madras Maintenance of Public Order Act, 1949. Vide this order, it intended to put a blanket ban on the publication and circulation of a journal called ‘Cross Roads’. The order was quashed as the Apex court held that a curtailment of free speech was uncalled for if the act wasn’t dangerous enough to the foundations of the State, or a threat to its overthrow. In Brij Bhushan, pre-censorship Order passed against the RSS mouthpiece ‘Organizer’, under Section 7(i)(c) of the East Punjab Safety Act, 1949, was also quashed by the Supreme Court. In both the cases, the impugned orders didn’t fall within the purview of Art. 19(2) hence, their curtailment was considered to be unconstitutional.

The right to free speech and expression is inclusive of the right to publish and circulate different opinions and information. Freedom of circulating is considered to be as essential as freedom of publication. This is reflected in the Supreme Court’s judgment in Sakal Papers (P)

46 A.I.R. 1950 S.C. 124 (India). 47 A.I.R. 1950 S.C. 129 (India). 35 Ltd. v. Union of India 48 whereby it held that the State would be violating the provision under Art. 19(1)(a) by restraining the publisher’s freedom to not only circulate the newspapers, and also the matter to be spread. This case challenged the constitutionality of Government’s newsprint policy restricting the number of pages to be printed. Similarly, another important case in this matter is the case of Bennett Coleman & Co. v. Union of India 49 . In this case, the Supreme Court made it clear that newspapers have the full freedom to decide how many pages they wanted to print and what was the volume to be circulated.

Right to dissent is a mandatory part of freedom to express, and dissent is also under the protection of Art. 19(1)(a), even if it’s a critique of the Government. In Directorate General of Doordarshan v. Anand Patwardhan 50 it was decided by the Supreme Court that the freedom to prevent open discussion on governmental policies was unconstitutional, no matter how hateful the views are towards the policies. In Srishti School of Art, Design and Technology v. The Chairperson, Central Board of Film Certification 51 , the Delhi High Court upheld the right of the Academic institution to broadcast and circulate a movie made by it named ‘Had Anhad’. The Film Certification board had banned it because they claimed that it referred to the Babri Masjid demolition and thus, but the Delhi High Court removed the ban.

Although B. R. Ambedkar said in his speech in the Constituent Assembly Debates that the media doesn’t enjoy any special privileges that are not available to the ordinary citizens yet, in practice, the press if given more access than an ordinary citizen. Media persons have the right to report legislative proceedings as this right stems from the public’s right to be informed about the debates that take place between the elected representatives regarding the matters of public importance.

This right is protected under Art. 361-A of the Constitution as well as in Parliamentary Proceedings (protection of Publication) Act, 1977. 52 However the Supreme Court has held that this right is subject to being curtailed due to the legislative privilege available to Assemblies of the Parliament and the State. In Tej Kiran Jain v. Sanjeeva Reddy 53 it was observed that people’s representatives should be free to express their views and opinions

48 A.I.R. 1962 S.C. 305 (India). 49 A.I.R. 1973 S.C. 106 (India). 50 A.I.R. 2006 S.C. 3346 (India). 51 (2011) 3 A.D. Delhi 289 (India). 52 Sec. 3&4, Parliamentary Proceeding (Protection of Publication) Act, 1977. 53 A.I.R. 1970 S.C. 1573 (India). 36 without the fear of judgment and legal consequences, for the public good and their discipline is to be checked by the members of the Assembly, and doesn’t warrant the interference of the courts.

Freedom of commercial speech was not within the ambit of Art. 19(1) (a) for a long time. In the case of Hamdard Dawakhana v. Union of India 54 , a case which dealt with the mockery of drugs and remedies as it claimed that magical remedies could substitute medicines in its advertisements, the Supreme Court held that advertisements being for commercial gains were excluded from the realm of free speech and subject to restrictions. However, this was overruled in the case Tata Press Ltd. v. MTNL 55 whereby it was held that the fundamental right to speech and expression was inclusive of the right to free advertisement and thus ‘advertising’ also falls within the ambit of Art. 19(1) (a).

Since technology has advanced rapidly, so has the media. Now, media consists of electronic and broadcast and thus, ‘broadcasting’ has also been included within ‘freedom of speech and expression’. In Odyssey Communications (P) Ltd. v. Lokvidayan Saghathana 56 , the Supreme Court had decided that the citizen had the right to exhibit films on the State channel, Doordarshan as this right was similar to getting views published by the press. Hence, broadcasting was constitutionally guaranteed under Art. 19(1)(a).

Similarly, the right to broadcast got due recognition Life Corporation of India v. Prof. Manubhai D. Shah 57 . In this case, Doordarshan had refused to telecast a documentary film on the Bhopal Gas tragedy titled ‘Beyond Genocide’ based on the ground that it was not relevant anymore, as per the passage of time, and it criticised the action of the State Government. The Supreme Court however, upheld the right of the filmmaker, and said that Doordarshan was a State-controlled agency and thus, wasn’t empowered to refuse to telecast a film unless it came within the purview of Art 19(2).

54 A.I.R. 1960 S.C. 554 (India). 55 A.I.R. 1995 S.C. 2438 (India). 56 A.I.R. 1988 S.C. 1642 (India). 57 A.I.R. 1993 S.C. 171 (India). 37 CHAPTER 4

APPROACHES TO REGULATE THE MEDIA

4.1 Need to Regulate Media

In the system of checks and balances, when every organization is answerable or being regulated by someone, media is claiming self-regulation.

Media is considered as the fourth pillar of Indian democracy. As other pillars of democracy, i.e., legislative, executive and judiciary are following the system of checks and balances and working under the constitutional ambit, but it’s very difficult with respect to media as there are no specific regulations to govern media. Even in the constitution, while referring to freedom of speech and expression, there is no mention about press/media specifically, hence, giving scope for a wide interpretation with respect to freedom of press. 58

One important aspect of freedom of press is that it flows through Article 19(1)(a) of Indian Constitution. And Article 19(1)(a) confers right to freedom of speech and expression to citizens. So, it can be derived from the constitution that media persons enjoy freedom of speech individually and not as an entity. For example, journalist, editor, anchor claims their right to freedom of speech and expression individually as per article 19(1)(a) of Indian Constitution. Media plays an important role in a democratic country in safeguarding the constitution work in the interest of general public. 59

It is the mirror for the society where members of the society remain updated about the incidents and developments taking place in the country, hence, media can mould public opinion as it plays an important role in public domain. This is the main reason for the necessity of responsible journalism. 60

Especially, when we are living in a technologically advanced world, where information flows in seconds irrespective of distance, it is very important that media play a positive role as one misleading/wrong information can be detrimental to the society and can lead to riots or bring hatred among the citizens. In India, where people from different culture, religion lives

58 Justice G.N. Ray, Statutory Regulation: The Indian Experience (May. 2, 2007), http://www.presscouncil.nic.in/OldWebsite/speechpdf/Statutory%20Regulation%20the%20Indian%20Experienc e%20Kenya.pdf 59 Id. 60 Id.

38 together, it is the duty of media to show the truth and at the same time refrain itself from imparting misleading information and sensationalization of the story in order to gain rating. 61

Some incidents where media needs to be more responsible and required but failed to meet the ethical standards and sensationalized the issue are the main reasons that people are advocating for media regulation in order to curb the unethical practice of media.

There are some cases like Jessica Lal, Priyadrshini Mattoo, Sanjeev Nanda where media played an vital role exposing the truth in front of society whereas there are some incidents like Aarushi Murder, Sheena Bora case, Dadri cow slaughter incident, Muzzafarnagar riots and 26/11 Mumbai terrorist attacks, when media was required to handle the situation in a more diligent manner and showing the content with utmost care but failed to do so resulting in making situation more adverse and invading right to privacy, fair trial and affecting national security.

This is the reason that media is claiming Article 19(1)(a) but often forget that it is subject to reasonable restrictions under Article 19(2) of Indian Constitution. In India, press is governed by Press Council of India act, 1978, whereas, there is no specific law with respect to electronic media. Newspapers are still governed by 1978 media law despite of so many technological advancements.

By discussing all the relevant issues, it can be inferred that Indian media requires regulation. Regulation should not be linked with control as both of them have different meaning and intention. Regulation should be interpreted in a way that freedom is subject to certain reasonable restrictions.

The issue which needs to be discussed and debated is the approach to regulate the media or the extent of regulation.

Indian media have gone through tremendous change in the past two decades. Earlier, there were few channels that were state owned being run by Doordarshan. Particularly electronic media in India has changed since 1991 after economic reforms pertaining to Liberalization,

61 Irum Saeed Abbasi and Laila Al-Sharqi, Media censorship: Freedom versus Responsibility, 7 JLCR, 21-25, (2015)

Privatization and Globalization (LPG) after which foreign-owned channels have entered the market. 62

The main reason for advocating regulation for media is because there is no single media body presently which oversees ownership, content and ethics of all media platforms. Moreover, Press Council of India which is self-regulatory body for Press had been established in 1978 which lacks press and regulation which is required in present situation when everything is technologically advanced.

Cross-media ownership without any restriction is another concern which has always been raised in the Telecom Regulatory Authority of India (TRAI) consultation paper of 2013. However, media till date strongly resisted the idea of media regulation or the grounds that it can interfere with the freedom of speech and expression of the Press and also asserted that self-regulation is sufficient in order to protect the public interest. 63

However, in recent times numerous incidents of media involvement in unethical in illegal practices point out that an urgent framework with sustainable regulatory mechanism is required in order to curb wrong practices by media.

Media reporting resulting into defamation is another important factor for advocating media regulation. As we all know that media plays an important role in building and diminishing any individuals or organization image. It can create a particular image in eyes of the society which sometimes lead to defamation and can also affect fair trial. Media ownership and stakes in media houses are mostly by business groups or influential people who are also related with political parties, thereby creating suspicion that it may be used for political motives or personal gains. Hence, it may affect autonomy and independence of media. 64

There were incidents where media houses have taken money in exchange for favorable coverage of political party and their interest. Paid news, sale of editorial space and advertisement have become common in present scenario. Therefore, fairness and impartiality

62 Padma Rani, Privatisation,convergence and Broadcasting regulations:A case study of the Indian Television Industry, The Asian Conference on Media and Mass Communication (2013).

63 Shakuntala Banaji, Regulating the Media in India – an Urgent Policy Priority, The London School of Economics and Political Science Media Policy Project Blog (2013), http://blogs.lse.ac.uk/mediapolicyproject/2013/08/07/regulating-the-media-in-india-an-urgent-policy-priority/ 64 Id.

40 are losing their significance in journalists which was one considered as core-value in journalism.

Unethical and sensational reporting of terror attacks, riots, health scams, superstitious content, private affairs of individuals/celebrities, disclosure of rape victims name are few major issues which need to be addressed in order to curb such practices which are forbidden by law but are not being followed in reality due to either self-regulatory/weak framework for regulation of media. Most important questions after ascertaining that media requires regulation is who should regulate?

Print-media in India is being regulated by Press Council of India (PCI), a body established under PCI Act, 1978. Basically it is a self-regulatory body comprises of journalists, editors and Members of Parliament. From past few years, it is being seen as an inactive and toothless body because lack of punitive bowers and non-binding authority.

Recently PCI Chairperson Markandey Katju has advocated for single media-body which should regulate both print and electronic media.

Research shows that only 90 complaints were accepted and heard in the year 2011-2012 whereas 330 million newspapers circulated daily in India. Out of those 90 complaints, 54 complaints were dismissed. Author also gave evidence which proves that there were long delays adjudicating such cases specifically pertaining to defamation matters. 65

According to the report of Press Council of India, out of 90 complaints, 49 were pertaining to defamation and also many of them dating back before the year 2010. And in even in the most severe case, Press Council was only able to censure the editor and bring the case to the notice of state bodies dealing with public relations and advertisement. 66

Media, often known as fourth pillar of democracy acts as a watchdog and plays an important role in strengthening democratic structure of the country. But the question is can the watchdog watch itself? In the system of checks and balances, media is claiming self-regulation. Hence, after discussing different aspects regarding whether there is need for media regulation, it can

65 Indira Akoijam, How effective is the Press Council, The Hoot (Sep. 17, 2012), http://www.thehoot.org/research/books/how-effective-is-the-press-council-6292. 66 Id.

41 be said that media requires regulation but what needs to be debated in type and extent of regulation. 67

4.2 Regulatory Problems Faced by Media

In India, media is regulated through different codes and statutes. As it is believed to be one of the growing industry and at the same time regulation plays a significant role as its function involves interest of public and nation.

This is quite evident that whenever there is any regulation introduced particularly in a field where influence on public is more, approach taken to regulate it will be mix of social, political and economic concern. In this technologically advanced age where impact of electronic media is far more than print media, that is why regulatory framework for print and electronic media is different. However, there was strong demand raised to bring print and electronic media under one umbrella named Media Council of India.

The major problem faced by media in India is because of multiple agencies being involved in formulating and implementing policy pertaining to media. In addition to this, the agencies often forget their powers and limitations relating in intervention and working at cross- purpose. There are many bodies whose functions often overlap when issues regarding regulation of electronic media content come into picture.

Many intellectuals have opined that India lags when it comes to regulate broadcasting content regulation. Even Law Commission of India has raised concerns regarding the same in the consultation paper on media regulation.

Media regulation in India especially electronic media regulations are dealt by official organization in India, some important organizations detail are mentioned below. 68

i. Union Ministry of Information & Broadcasting

Main function of ministry is to regulate the content and act as a policy-maker. In Deepak Maini v Star Plus69 (2009), Court held that Ministry of Information & Broadcasting is in a

67 Saumya Ramakrishnan, Can the watchdog watch itself?Indian media and self-regulation, First Post (Aug. 27, 2012), http://www.firstpost.com/politics/can-the-watchdog-watch-itself-indian-media-and-self-regulation- 431499.html. 68 Amrita Sarkar, Regulation of Television Content in India, 1 IJESLS (2015), http://www.ijesls.com/REGULATION%20TELEVISION%20CONTENT-%20Amrita%20Sarkar.pdf 69 162 (2009) DLT 352 (India).

42 better position to judge the content of television and court interference is not required. In Rakhi Sawant v State of U.P. 70 , where issue was related to a Reality Show where host of the show designated one participant as impotent which later became the reason for his suicide. Allahabad High Court held in this case that language of the anchor was uncivilized and offensive. 71

As, these television shows are not related with news so body which oversees television content with respect to non-news content is Indian Broadcasting Foundation (IBF). It is equivalent to News Broadcasting Association (NBA). IBF is a self-regulatory body created under a Memorandum of understanding (MoU) between channel owners. Basically it is a non- profit organization under Section 25 of Companies Act, 1956. Complaints regarding the same will be dealt by Broadcasting Content Complaints Council (BCCC).

If a channel do not follow Ministry of Information & Broadcasting self-regulation guidelines for Broadcasting Sector with respect to Program Code. IBF would expel them from membership and also ask Ministry of I&B to take necessary action against the channel. Presently, with respect to non-news channels - member of IBF, has to allow disclaimer stating that any content which viewers feel to be dissatisfying could be reported to BCCC.

ii. Inter-Ministerial Committee

The Committee was established by Ministry of Information & Broadcasting which looks into the complaints pertaining to violation of program and advertisement code with respect to Cable Television Act & Rules. 72

iii. Telecom Regulatory Authority of India

Once TRAI was given responsibility of regulating broadcast sector in addition to telecom sector but it backed out and presently dealing with technological issues such as pricing and carriage regulation. 73

70 CRIMINAL REVISION No. - 844 of 2011 (India). 71 SARKAR, supra note 68. 72 Id. 73 Id.

iv. State/District Level Monitoring Committees

These committees derive powers through Cable Television Act and are responsible to prevent transmission of selected programs in public interest. Authorized officers under the act have also the power to seize broadcast equipment. 74

v. National Commission for Women

Its role is recommending amendments with respect to depiction of women in media to the Indecent Representation of Women Act.

So, there are many problems faced by media with respect to regulations and power, structure and limitations of regulators. As there are many issues when there is overlapping of jurisdiction with more than one regulator resulting in confusion. There are problems with reference to regulation of print and electronic media then there are issues within one particular medium also. This is the main reason for advocacy of new regulations or change in existing regulations for media. 75

Because of lack of uniformity in the regulatory framework of media and often many bodies overseeing media having same functions leading to uncertainty. Hence, media is also facing problems due to unorganized regulatory framework.

4.3 Self-Regulation v State-Regulation

4.3.1 Regulatory Framework of Print & Electronic Media

Print media in India is regulated by Press Council of India which has been established by Press Council of India Act, 1978. The Council consists of a Chairman and 28 other members. Committee consists of Chairman of Rajya Sabha, Speaker of the Lok Sabha and a person elected by the members of the Counil nominates Chairman of PCI.

Act empowers PCI to take suomotu cognizance against newspaper and journalists accused of violation norms or journalistic conduct. It may summon witnesses, take evidence and has the

74 Id. 75 Telecom Regulatory Authority of India, Recommendations on Issues Relating to Media Ownership (Aug. 12, 2014), http://www.trai.gov.in/WriteReadData/Recommendation/Documents/Recommendations%20on%20Media%20O wnership.pdf

44 power to issue warning and admonish the newspaper/journalist. Although Council does not have any power to penalize for violation of its guidelines.

Presently, Cable TV Networks (Regulation) Act, 1995 applies to Broadcast Media. Although there is no regulatory authority set up under the act but it has Program Code and Advertising code which prohibit broadcast of any program or advertisement not in consonance of the act. 76

Telecom Regulatory Authority of India (TRAI) regulates Broadcasting sector in India which form rules on issues like streamlining distribution. Also, Ministry of Information & Broadcasting established Electronic Media Monitoring Centre (EMMC) which monitors content of Private FM Radio Channels and checks the violation of Program and Advertisement Code by TV Channels. 77

With reference to news and current affair channels, News Broadcasters Association (NBA) is the self-regulatory body which has established News Broadcasting Standards Authority (NBSA) responsible for adjudicating complaints against news channels in relation to broadcast content. Jurisdiction of NBSA is limited to members only. Only organizations that are members of NBSA are abided by the regulations of NBA. NBA also regulates television content by code of ethics and empowered to censure, admonish, fine, warn any broadcasts for violation of the code. 78

4.3.2 Self-Regulation and its Advantages

Formal and compulsory directions regarding content, structure and conduct of media forms part of media regulation. As we all know that freedom of expression is an important component in a democratic society. This freedom is important in itself but also protects other freedoms and rights.

Freedom of expression requires a public dimension and the need was felt to include the same at international level. Importance of their freedom is reflected by its extensive protection in International Convention and Treaties. For example, it is protected under Article 19 of International Covenant on Civil and Political Rights (ICCPR), Article 19 of Universal

76 Id. 77 Id.

78 Government of India Law Commission of India, Consultation Paper on Media Law(May,2014), https://www.lawcommissionofindia.nic.in/.../Consultation%20paper%20on%20media%20law

Declaration of Human Right (UDHR), Article 13 of American Convention on Human Rights, Article 9 of African Charter and Article 11 of European Convention on Human Rights (ECHR). 79

Basically, self-regulation is not censorship or self-censorship rather than setting up minimal standard of accuracy, ethics etc. while preserving the right to freedom of speech and expression. Although, there are several incidents after which demands are being raised for specific framework with respect to media in India. In 2013, Delhi High Court rejected idea of self-regulation in a case related to reality television and recommended Central Government to make regulations for electronic media.

Indian media is however opposed to the idea of any statutory regulations and justifying it by saying it is capable of self-regulation which is also important for the independence and autonomy of media. But, on the other side, head of regulatory bodies especially electronic media are of the opinion that many channels opt out of the association if they do not want to pay fines or follows its rules which ultimately dilute the intention of self-regulation for media. 80

Self-regulation refers to setting out certain standards or codes of behavior for media which uplift freedom of expression and at the same time monitor the behavior as per the standards. Argument which goes in favor of self-regulation of media is that media plays a vital role in aiding democracy, so it is important to preserve independence and autonomy of media for which self-regulation is necessary which will also protect media from government interference. Another point which is often raised by media is that in this global environment where jurisdiction issues are complex, self-regulation is better way to handle the situation. 81

Also, concept of self-regulation is less costly and it can also raise professional standards as organization needs to analyze and develop their own code of conduct.

79 Andrew Puddephatt, The Importance of Self regulation of the Media in upholding Freedom of Expression (Feb. 2011, http://unesdoc.unesco.org/images/0019/001916/191624e.pdf

80 Saumya Ramakrishnan, Can the watchdog watch itself? Indian media and self-regulation F.POLITICS ( Aug. 27, 2012 , 11:27 AM), http://www.firstpost.com/politics/can-the-watchdog-watch-itself-indian-media-and-self- regulation-431499.html 81 Id.

But the question is when even judges, advocates, chartered accountants could be held liable then why not media. Even when media is also at the same footing with citizens in terms of exercising of freedom of speech and expression under Article 19(1)(a) of Indian Constitution.

Instances and Case Laws-

i. Mahesh Bhatt v Union of India 82 , In this case Court held that restrictions imposed on electronic media is reasonable and justified.

ii. Star India Private Limited vs. Union of India 83 Court issued guidelines with respect to indecent content of television shows and prohibition of their telecast at prime time.

iii. Times Now, an English News Channel in 2008 erroneously telecasted Justice (retd.) P.B. Sawant picture instead of another judge in connection to Provident Fund Scam and image was telecasted for 15 seconds. Bombay High Court ordered the channel to give bank guarantee of Rs.80 crores as damages and also deposited Rs.20 crores in cash Channel also run apology for a week.

iv. Congress MP, Shashi Tharoor filed Rs.10 crore defamation suit against a newspaper.

v. 125 defamation cases against The Hindu and other newspapers were filed by Former Tamil Nadu CM J. Jayalalitha.

vi. In Secretary, Minister of I&B vs. Cricket Association of Bengal 84 . In this case Supreme Court held that broadcasting should be under the control of public as distinct from government.

4.3.3 De-merits of Self Regulation

There are more than one lakh print publications and around 900 private TV channels. Out of that 400 are news and current affair channel. Around 168 millions of homes out of 225 million households have access to satellite and cable television in India.

82 147(2008)DLT561 (India). 83 W.P. (C) 879/2010 (India). 84 AIR 1995 SC 1236 (India).

Rapid increase in unethical and illegal practice by media indicates the idea of self-regulation will not help in long run. Supreme Court observed that there should be a law controlling electronic media in the case of Secretary Ministry of I&B v Cricket Association of Bengal 85 .

Media misreporting, defamation, cross-media ownership, paid news, sale of air time and advertisement, sensationalizing in reporting health scares and terror attacks, invading privacy of individuals and trial by media cases/incidents are increasing day by day which hints that self-regulation is not effective to meet the ethical standard of media industry. 86

Nominally Press in India is self-regulating through Press Council which is a statutory body reporting to Parliament. PCI from many years seen as inactive and lacks adequate power of enforcement. In 2012, Press Council of India passed a resolution requesting Government of India to amend Press Council of India as Media Council of India to bring electronic media also under the purview.

Parliament Standing Committee also in its 47 th Report recommended for a statutory body to look into content from both print and electronic media. Press Council of India sub-committee report mentioned that paid news has become widespread across media.

With respect to electronic media which is being regulated by NBA (self-regulatory body), only one license has been cancelled so far due to violation of norms, that too channel withdrew from the body and then was asked to come back. In Sahara India Real Estate Corp. Ltd. vs. SEBI 87 , Supreme Court held that appropriate directions to print and electronic media with regard to sub-judice matter should be given.

So, it can be said that self-regulatory mechanism has its own shortcomings and is more or less a toothless tiger as media keep harping on Article 19(1)(a) but tends to forget reasonable restrictions attached to it under Article 19(2) which can affect important issues like National Security as happened in 2008 Mumbai Attacks.

85 AIR 1995 SC 1236 (India). 86 Dr. Eun-Suk SA, Distorted Democracy and Freedom of the Press under Capitalism, 3 IJHS 161, 167-169 (2013)

87 (2012) 10 S.C.C. 603 (India).

4.3.4 Concept of State Regulation

Government control over media is an idea which is not supported by many. Even the Constitution makers were aware about the power of press during freedom of struggle, that’s why they have preferred freedom of speech and idea of free press which is very important in development of a democracy.

In April 2003, Delhi High Court in a case of Indraprastha People v UOI 88 rejected the idea of self-regulation and recommended statutory regulation for electronic media. Problems regarding cross-media ownership when many news channels are owned by corporate houses and politicians, concept of statutory regulation by government can be used as a tool to fulfill their political interest, thereby undermining democracy.

Deputy Commissioner of Police, Mumbai, passed an order under Section 19 of Cable Act during Mumbai Terror Attack due to which many news channels went off air for short duration. However, government intervened and cancelled the order. After Mumbai Attack, Maharashtra Government decided that to protect national security, it would bring laws to regulate the content of news channels which created controversy and declaration was seen as attack on independence of media.

After Mumbai Terror Attack in 2008, NBA again issued fresh guidelines pertaining to fairness, privacy, decency and impartiality. Also, guidelines covered areas like coverage of law and order issue, sting operation, national security, depiction of women and children and supernatural matters. These developments show that name-sake self-regulatory body has its own shortcomings which lack punitive powers and it failed to serve the purpose for it failed to serve the purpose for its establishment. 89 Arguments which favor state-regulation for media are to ensure media is unbiased, to curb the menace of paid news and to ensure professional and ethical standards of media. However, idea of state regulation is not supported by media persons, intellectual as it may have adverse effect if the power has been misused and can create emergency like situation and can dilute the idea of free democracy.

In 2001, Government attempted to introduce Communication Convergence Bill which did not get passed. This bill was opposed by saying that Government trying to control media through

88 WP (C) No 1200/2011 (India). 89 SARKAR, supra note 68.

49 this bill which can affect independence and autonomy of Media. This Bill is in lapsed stage presently.

4.3.5 The Communications Convergence Bill, 2001: An Analysis

With the intention of being the second Asian country with a dedicated framework on convergence media, the Government had put in a lot of efforts into introducing the Convergence Bill in the Lok Sabha on 31 st August, 2001. This Bill, drafted by the revered legal personality Fali S. Nariman, sought to make a legal framework that would provide for the regulation of the different types of media such as broadcasting, telecommunication, wireless telephony and other multimedia. The Internet as a tool of commerce expanded exponentially and the need for the Information Technology Act, 2000 was thus felt. This Act gave legal recognition and authority to various digital documents and the signatures therein, and viewing the increasing number of cyber related crimes, was intended to check the epidemic of cyber crimes. Similarly, a need was also felt for an all-encompassing act that brings the various forms of media under its purview to create a more efficient and encouraging environment for this industry. 90

Although ‘convergence’ as such has not been defined in the new bill but in the context of the bill it refers to the coming together of various medium or technologies facilitating the provision of services arising from the given facility or vice versa. The idea that a service provider provides all the technologically feasible services to consumers and the consumers should be able to receive all services through a given terminal at any given point of time or place of his choice. The new proposed Convergence Law to “promote, facilitate and develop in an orderly manner the carriage and content of communications (including broadcasting, telecommunications and multimedia), for the establishment of an autonomous Commission to regulate carriage of all forms of communications, and for establishment of an Appellate Tribunal and to provide for matters connected therewith or incidental thereto. 91 ”

Going by the business perspective, it was realized that the infrastructure required for one form of media would turn out to be more profitable and business-friendly if these could be made applicable to other forms of media as well. The historical legal framework failed to take cognizance of the ever-growing technological advancements and applied too many artificial

90 V.K. Unni, The Communication Convergence Bill, India-A Lawyer’s Perspective (Apr. 2, 2016), http://www.lawyerment.com.my/library/publ/comm/review/d_8.shtml. 91 Id.

50 barriers in the form of excessive licensing and regulations. Excessive licensing discouraged people from being a part of this industry. 92

With the passing of this Bill, the Government intends to do away with five antiquated acts viz. The Indian Telegraph Act, 1885, The Indian Wireless Telegraphy Act 1933, Telegraph Wire Unlawful Possession Act, 1950, Cable Television Networks (Regulation) Act 1995 and The Telecom Regulatory Authority of India Act, 1997. Also, once this Bill is legislated, the service providers who have to obtain license in five categories of media before they can do business in these, will be able to carry out business with a single license, the five categories being network infrastructure facilities, networking services (earth stations, cable infrastructure, wireless equipments, towers, posts, ducts, etc.), networking services (bandwidth services, fixed links and mobile links), network application services (public switched telephony, public cellular telephony, global mobile personal communication by satellite, internet protocol telephony, etc.), content application services (satellite broadcasting, subscription broadcasting, terrestrial free to air television broadcasting and terrestrial radio broadcasting) and value added network application services. 93

Constitution of the regulatory bodies-

With this Bill, the Government proposed to institute an autonomous body – the Communications Commission of India (hereinafter referred to as the CCI), with its headquarters in Delhi and regional offices in Mumbai, Chennai and Kolkata. The Commission is to be made up of nine members including the head that would be the Chairperson, seven other members and a Spectrum manager as the ex-officio member.

The seven persons appointed are to be persons of eminence in the field of technology, telecommunication, broadcasting, law, literature, performing arts, education, films, or administration. The persons in government service who wish to be whole time members or become a Chairperson will have to retire from their government service. The chairmanship and membership will be a term of 5 years or till the date of turning 65 – whichever earlier. The chairperson is not eligible for reappointment. A search committee constituted by the Government will recommend names to the Central Government which shall on such a

92 Ashish Pathak, India :The Communication Convergence Bill : India’s Tryst with Destiny, (Jul. 11, 2002), http://www.mondaq.com/india/x/16955/broadcasting+film+television+radio/The+Communications+Convergenc e+Bill+Indias+Tryst+with+Destiny. 93 Id.

51 recommendation, appoint the Chairperson. 94

The Chairperson is to have powers of general superintendence according to the powers conferred upon him by the Bill, and will preside over meetings, exercise or discharge duties that are prescribed to him by the Commission. A Secretary General appointed by the Central Government will be the Chief Executing Officer (CEO) of the CCI. For the appointment of the Secretary General, the CCI is to seek a panel of not less than three members from the Central Government whose ranks will not be less than that of a secretary to the Government of India. The Bill also provides for the constitution of a Communications Appellate Tribunal to address the grievances under this Bill. This Tribunal will consist of a chairperson and not more than six members who will be appointed by the Central Government. The Chairperson is to be a sitting or retire Supreme Court judge and the six members could be sitting or retired High Court judges, central or state government secretaries with at least two years of experience in their post, or must be eminent personalities proficient in fields of telecommunication, broadcasting, law and administration.

An appeal against the order of the CCI can be made sixty days since the passing of the order that will be taken up by the Communications Appellate Tribunal. An appeal against the order of the Tribunal’s order can be made at the Supreme Court on grounds specified under section 100 of the Code of Civil Procedure, 1908, within a time period of ninety days since the passing of the order by the Tribunal. 95

While the CCI is there to resolve disputes between two or more domestic service providers, for international coordination the Government has introduced the concept of creating a Spectrum Management Committee.

This Committee will be chaired by the Cabinet Secretary of the Government and a Wireless Advisor to the Government of India and will act as Member-Secretary of the Spectrum Management Committee. The Spectrum Management Committee is to carry out spectrum planning, and assign frequencies to the Central Government and to State Governments to meet their vital needs, including those of defence, national security and of the public service broadcaster. Subject to the general supervision and control of the Spectrum Management Committee, the Spectrum Manager is to assign frequencies on payment of such fee as may be

94 Pavan Duggal, India :Telecommunication Convergence Law in India - A Critique, 9 Murdoch University Electronic L.J. (2002), http://www.austlii.edu.au/au/journals/MurUEJL/2002/6.html. 95 Pathak, supra note 92.

52 prescribed by the Central Government. The CCI is responsible for assignment of the non- strategic and commercial spectrum to various users. Whenever the Commission seeks allocation of additional spectrum for assignment, including in the shared bands, a process for mutual consultation between the Commission and the Spectrum Manager shall be initiated within a time frame as prescribed by the Government. 96

Analysis of the Bill-

While on the face of it, the Government’s intention of introducing this bill with the legislative intent of constituting an autonomous body regulating the convergence of media industry may sound promising yet, a careful perusal will highlight that the Bill is plagued with contradictions to the idea of autonomy and independence to the regulatory body of the CCI. A careful reading will show that in every clause, the Government has been given the right, right from deciding the major constitution of the CCI up to the appointment of members of the Tribunal. While the CCI is claimed to be an autonomous body, yet, is subjected to interference from the Government. 97

The CCI according to the Bill has to follow the policy directives of the Government. But, whether the directive issued by the Government was policy directives or not again left to the Government to decide. Also, since the General Secretary is to act as the CEO of the CCI, this again brings in the influence of the Government.

Another problematic aspect is the Spectrum Management Committee that is to decide the allocation of bandwidth. While it is understandable that bandwidth required for security reasons such as defence, should be the first priority and only after the required allocation to national security forces have been assigned, should the commercial purposes take precedence. However, it is only fair that once the allocation for nation’s security purposes have been made, they should be fairly distributed among the other resources. It can be deduced from the constitution of the bodies that the CCI is at a much better footing than the Spectrum Committee to decide the allocation of frequencies than the Spectrum Management Committee. The Bill clearly states that the Cabinet Secretary is to head the Spectrum Management Committee, which will bestow upon it dual authority, which will leave the CCI

96 Id. 97 Duggal, supra note 94.

53 to be a secondary body making the decisions. 98

The parameters for appointment to various positions are also left vague. The term ‘eminent personalities’ have not been properly defined and laid out, thus being open to the interpretation of the Central Government. The Government has also retained the power to decide the chairmanship of the CCI, which again brings the CCI under the control of the Central Government. This gives the government in power to bring in nominees who find themselves in politically favorable position with the government, thus bringing in a biased candidate for a highly responsible and what is to be a democratic, secular, unbiased position. 99

A very important principle of the Indian Constitution is the separation of powers. But, this Bill vests the regulatory as well as judicial authority in the same body, thus giving rise to the possibility of an unfair and unjust environment.

The CCI has been given no independent existence as promised (to bring in an autonomous body) and it has to follow the policy directives of the Central Government. These directives may also contain the mode or procedure of selecting or disbursing a service, thus mooting the CCI as an independent body. Also, another worrisome factor is that the CCI has been given immense power of censoring content and no such parameters of what is acceptable content and what kind of content is to be censored, has been laid out properly, thus exposing media content to heavy censuring as per the directions of the Central Government – which threatens the freedom of the media. It can also be noticed on examination of the Bill that no idea of what is impartial or unfair, has been defined, thus threatening the freedom of the media, as the Government can declare anything which goes against them, to be impartial or unjust, thus leaving no space for healthy critique of governmental policies and the general working of the Government. 100

Thus, although the Government had introduced the Bill which is in lapsed stage presently with the idea establishing a regulatory framework for carriage and content of communications in the scenario of convergence and telecommunications broadcasting, data communication, multimedia and other related technologies and services, yet, there is a lot of work to be done on this Bill as the authority and freedom cannot be unnecessarily censored and the Central

98 Id. 99 Id. 100 Pathak, supra note 92.

Government cannot be incessant powers to interfere in the working of the media industry, as this might result in the slow death of democracy.

4.4 Independent Media Regulator

When media accountability is not being served by self-regulatory institutions due to lack of enforcement powers, recent debates are favoring for establishment of independent media regulation in India.

Even in United Kingdom, after series of media scandals, a committee has been set up under the leadership of Lord Justice to inquire into practice and ethics of press. Report of the Committee recommended abolishing existing Press Complaints Commission and setting up a strong independent regulator. 101 Cross-media ownership is another issue in India which requires regulation as there are no clearly defined cross-media caps like in UK broadcast license is not given to religious bodies and political parties.

There are numerous examples which show that there is a need of independent media regulator that is independent of the government on the lines of Ofcom which is independent regulator for the UK communication industries as Federal Communication Commission in US. So many voices are being raised for independent regulatory authority like Security Exchange Board of India as the Insurance Regulatory and Redevelopment Authority as these bodies are functioning effectively in their area.102

Over the years, it has been noticed that self-regulatory mechanism has miserably failed and self-regulatory bodies are either inactive or functioning as a toothless tiger. Media plays a vital role in a democratic country and its responsibility gets enlarged in the democracy as large as India. As media is an interface between government and public.

In the case of Ajmal Mohammad Amir Kasab v. State of Maharashtra 103 , Supreme Court observed that media’s reckless overage during 2008 Mumbai Attacks benefitted terrorists as every minute to minute detail was aired on channel which was being watched by the collaborations across the border on news channels and same was communicated to the terrorists. Hence, the way security operation was telecasted freely made the task of security

101 LAW COMMISSION OF INDIA, supra note 78. 102 Vanita Kohli, The India needs independent media regulator , BUSINESS STANDARD (Jun. 7, 2011, 11:01 AM), http://www.rediff.com/business/report/wanted-independent-media-regulator/20110607.htm. 103 (2012) 9 S.C.C. 1 (India).

55 forces dangerous and risky. Any action which may violate Article 21 or putting national security at risk can never be justified by taking defense of freedom of speech and expression.

Recent case of Dadri on cow-slaughtering was highly communalized by media, although state-government has not mentioned any religious angle. Details of 2G, CWG Scam, Naveen Jindal blackmailing case, Neera-Radia tapes exposes active involvement of journalist in corruption. So, this has been argued that establishment of independent media regulator which is free from government control and entrusted with powers to adjudicate complains including paid news and owners interference in day to day editorial matters.

After discussing the need of independent media regulator in India in detail, it can be said that independent regulator in media is required to prevent misreporting, enhance accountability and safeguard interest of public.

Independent regulator for media should not be seen as attack on independence of media as regulator is to regulate and not control. The difference between control and regulation is that, in control, freedom is not there but regulation comes with freedom subject to reasonable restrictions. 104 Fact that there are laws itself indicates that self-regulation is not sufficient, there is need of some external regulation and sanction to prevent media from taking a free- ride and respect the system of checks and balances in a democracy.

104 Markandey Katju , Media cannot reject regulation , (May 2,2012), http://www.thehindu.com/opinion/lead/media-cannot-reject regulati on/article3374529.ece

CHAPTER 5

MEDIA REGULATION IN UNITED KINGDOM AND UNITED STATES OF AMERICA

After discussing the Indian Legal System and regulations in India pertaining to media, it is very important to analyze media regulation in United Kingdom (UK) and United States of America (USA) to draw best practice for India.

The reason of selecting US & UK for comparative analysis is because we have borrowed most of the provisions/concepts/practices from US & UK while framing the Indian Constitution and other practices followed in Indian Legal System.

5.1 Media Regulation in United Kingdom

Media in UK is monitored by both statutory and self-regulatory bodies which are largely independent and their primarily role is to develop codes of practice. Other than this, media is also subject to the law related to hate speech, defamation and obscenity.

Codes for practice for journalists is to maintain professional standards and encourage ethical ways of working. Accuracy, fairness, privacy and impartiality are the key elements of the Code through which professional standard can be maintained. 105

5.1.1 Regulatory Bodies

1. Office of Communication (Ofcom) – It is a statutory body which regulate communication, including telephone, radio, television and online provisions. It has the power to fine broadcasters for breach of code and can cancel the license to operate.

Ofcom is accountable to Parliament and operates under several legislations of Parliament. One of the legislation is Communications Act, 2003 which also says that primary duty of Ofcom is to safeguard the interest of consumers and citizens and also promoting competition.

105 Evan Truth, Media Regulation in the United Kingdom, https://www.article19.org/data/files/pdfs/publications/uk-media-regulation.pdf

57 Ofcom was established through Office of Communication Act, 2002. Communications Act, 2003, Broadcasting Acts 1990 & 1996, Wireless Telegraphy Act 2006, Digital Economy Act, 2010 and Postal Services Act, 2011.

2. Independent Press Standards organizations (IPSO) – It was established in 2014 after scrapping Press Complaint Commission. It is independent regulator of newspapers and magazines in UK. Objective of IPSO is to uphold high standards of journalism and preserve the freedom of expression of the Pres but at the same time protecting individual rights as well.

IPSO make sure that Editor’s Code is being followed by newspapers and magazines and also investigate complaints regarding breach of Editor’s Code by printed and online material. It can ask newspapers/magazines to publish corrections and can fine publishers in serious breach up to £1 million.

Also, newspapers/magazines need to submit annual statement describing how they are handling the complaints and following Editor’s Code.

3. The BBC- It has its own Editorial and other guidelines which regulates the work of their journalists. The BBC Trust monitors the working of its internal complaints system.

4. Reader’s Editors – They are feature of some, notably The Guardian. These editors offers an internal but independent complaint resolution service.

5.1.2 Broadcasting Content Regulation

Unlike print media, broadcasting sector in UK is complex and based on a statute. Broadcasting Act, 1990 provides regulation for private television and radio regulated by Independent Television Commission (ITC) and Radio Authority (RA). Both bodies are conferred with broad powers of licensing and established codes which need to be abided by license holder. In case of breach of license conditions, they have power to suspend or revoke the license of broadcasters. 106

106 Hugh Tomlinson & Matrix Chambers, The New UK Model of Press Regulation (Mar. 2014), http://www.lse.ac.uk/media@lse/documents/MPP/LSE-MPP-Policy-Brief-12-The-New-UK-Model-of-Press- Regulation.pdf

58 The British Broadcasting Corporation (BBC) has established an internal system to adjudicate complaints and being a public broadcaster is not subject to ITC licensing.

All broadcasters, be it public or private, television and radio comes under jurisdiction of Broadcasting Standards Commission (BSC) which also entertain complaints from general public and work towards setting up code of conduct to uphold professional standard. Although, the members of ITC & RA are appointed by government but in practice they function independently and without government control.

The Broadcasting Act, 1990 gives an overview of unacceptable program content and leaves detailed elaboration of the same to ITC & RA through code of conduct. But they may only provide guidance pre-broadcast and both bodies do not review material before broadcast.

Broadcasting Act, 1990 prohibits the broadcasting of irresponsible religious program, obscene/illegal material news which is not impartial, accurate, any program which incite crime, offensive to public feelings or decency.

ITC receives significant number of complaints and the summary of complaints received and report of action taken is published on a monthly basis. ITC has also developed one program code to cover impartiality, political and parliamentary broadcasting, crime, defamation, religious, terrorism and way of communication to public.

Radio Authority has developed two codes namely Program Code and News and Current Affairs Code. As the name itself suggests, program code deals with general content whereas news code is pertaining to news content. 107

5.1.3 Leveson Inquiry Report

After the News International Phone Hacking Scandal, enquiry committee had been set up under the Chairmanship of Lord Justice Leveson to review/study the culture, practices and ethics of British Press. After public hearings between 2011 & 2012, inquiry published the report known as ‘Leveson Report’ published in November 2012.

Inquiry recommended a new body for Press must be formed which should be independent of parliament and media and that should be free from any kind of influence from industry or government and governed by and independent board. Appointment should be done in an open,

107 Id. 59 just and transparent manner. Independent regulator should be established by Press themselves and it should place duty on government to protect and uphold freedom of press. So, it has recommended new body in place of Press Complaint Commission. 108

Report has also criticized functioning, appointment of members and durability of Press Complaint Commission and favored for independent self-regulation body which should entertain individual complaints and the members of which must be free from political and economic interference.

Report also recommended creation of an arbitration system through which complaints can go for redressal of complaints against press without going to court. Also, newspaper which refuses to be the part of new body should be directly regulated by Ofcom. New body for press should be independent of serving editors/journalists and government members. Report also recommended for establishment of whistle-blowing hotline for journalists. It was observed in the report that politicians and press have been too close and at times, press behavior has been outrageous. 109

5.1.4 Analysis

Up to a certain extent, UK system relies on bodies which are either self-regulatory or bodies which are independent of government. System in UK ensures that regulatory standards are being followed by media in both print and broadcasting sector. Also, codes of conduct framed by regulatory bodies are flexible and are subject to constant change. It is not possible to provide guidelines and rules with respect to each subject. But then code also gives wide margin of interpretation which enhances the working of regulatory bodies.

There is a need to protect public interest and at the same time strike balance between competing rights and freedom. Free press is not an element for lawlessness. The conduct of media over years cannot be justified by taking defense of liberal principles and the right of media does not mean it can encroach on individual rights to gain rating or for business purpose.

SRZ Lord Justicle Leveson, An Inquiry Into The Culture, Practices And Ethics Of The Press Executive Summary (Nov. 2012), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229039/0779.pdf 109 Id.

60 Previous chapters discussed the media regulation system of India, now; this chapter discusses the media regulation system of United States of America and United Kingdom. In order to attain an efficient model of regulation it is required to study and analyze the system of other countries. Since Indian Constitution has borrowed several of its codes and practices from the Constitution of United States of America and United Kingdom, analysis of media regulation system of these two nations have been done. The media of United Kingdom is governed by statutory as well as self-regulatory bodies. These are independent bodies which develop the code of conduct of media and journalists.

The chapter discussed about the four regulatory bodies: Office of Communication (Ofcom), which is a statutory body accountable to parliament and regulates communication; Independent Press Standards organizations (IPSO), established in 2014, an independent regulator of newspapers and magazines; The BBC, which has its own guidelines and regulates the work of their journalists; Reader’s Editors, which offers an internal but independent complaint resolution service.

5.2 Media Regulation in USA

In USA, Bill of Rights was drawn up and submitted to state to ratify. It came in force in 1791. First Amendment deals with the freedom of press and states that Congress shall make no law abridging the freedom of speech or of the press.

Crucial question which arises is which restrictions on freedom are constitutionally permissible and which ones are not. Let’s look at the theory on freedom of expression by refined thinker, John Stuart Mill, an English political philosopher. Mill’s ‘On Liberty’ which was first published in 1859 defined the limits of freedom and authority in the modern state. He said that in countries like USA and England, during mid 1800s’ role of press was very important as it acted as a pillar against corrupt/authoritarian government. He reiterated that any attempt to restrict freedom of expression can deprive general public of something important. 110

Mill also gave four propositions of freedom of expression which are as follows:

1. Opinion may contain truth and if anyone restricts the opinion, the truth may be lost.

110 Adam Candeub, Media Ownership Regulation, the First Amendment, and Democracy’s Future (Jan. 1, 2008), http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1360&context=facpubs

61 2. Even in wrong opinion, particle of truth may be present and hence if anyone restricts the wrong opinion, that particle of truth may be lost.

3. Even if an accepted opinion is the truth, public do not accept it on rational grounds but hold it as a prejudice unless forced to defend it.

4. Common opinion loses its robustness and effect on character or conduct if it is not contested in a timely manner.

In Schenct vs. US 111 in 1919, Supreme Court held that first amendment is not absolute. And Congress may abridge freedom of speech whenever that particular speech presents a “clear and present danger” to some other national interest which is far more important than freedom of speech. Justice Holmes concluded by saying that abridgement of freedom must be decided by ascertained by its purpose and thus free speech can never be absolute.

In Near vs. Minnesota 112 , U.S. Supreme Court held that a newspaper may be not censored before publications except under very exceptional circumstances.

In New York Times vs. U.S. 113 , federal government was seeking to censor major newspapers for national security issues by preventing from publishing secret documents. Supreme Court allowed the publications of the article based on the “Pentagon Papers”. Court said government has failed to prove that article can endanger national security to justify press restraint on national press.

In Branzburg vs. Hayes case 114 , court described freedom of press as a “fundamental personal right” which is not confined to magazines or newspapers. In Miller vs. California 115 (1973), US Supreme Court held that freedom of speech under first amendment does not apply to obscenity.If a work is legally obscene, it may be censored and the producers may be punished and if it is not then it is protected by First Amendment and cannot be censored.

Impact of Mill ideas on freedom of expression has become evident in 20 th century. In USA, publishers, broadcasters may be sued invasion of privacy, liberty or copyright infringement and there are regulations pertaining to advertising, restrictions to access the information and

111 (249 U.S.47) 112 (283 U.S. 697) 113 (403 U.S. 713) 114 (408 U.S. 665) 115 (413 U.S. 15) 62 anti-trust laws. Federal Communication Commission governs electronic media through government regulations. Also, broadcaster needs to get a license and renew it periodically before going on the air. With respect to cable systems, they are being regulated by FCC regulations, federal laws and rules framed by local governments. Also, broadcasters, satellite and cable operators need to comply with other government regulations dealing with program content and technical quality. However, print media has no such rules. The idea behind government regulation is known as ‘scarcity rationale’. Congress also endorsed new regulations or broadcast content including the debated V-Chip system which allows viewer to exclude violent or sexually-oriented programming.

5.2.1 Federal Communication Commission

Federal Communication Commission was established to regulate broadcasting and other non- governmental uses of radio spectrum. After so many years, now FCC has gained broad authority over the electronic mass media. The main functions of FCC are to license and supervise those licenses.

Commission consists of 5 commissioners who act as a policy maker. They are appointed by the President with the consent of Senate. The term of commissioners is of five years. Out of 5 members, only 3 members can be from one political party. FCC is both a law-making body as well as executive body. It also performs judicial function with respect to examining evidences in the proceeding to penalize those who violate its rules.

However, powers of FCC are limited. It has to follow “due process of law” as per Fifth Amendment and accordingly afford the parties who appear before it. Also, it needs to follow First Amendment and other provisions of Constitution. Jurisdiction of FCC is limited by the Communications Act, 1934. Parties can appeal to the US Courts of Appeals and from there to Supreme Court against the decision of Commission. When the decision goes in appeal, court determines if the FCC has violated the Constitution/exceeded its jurisdiction or abused its discretion by making a decision which does not seem to be justified according to the facts. 116

The bureau of FCC was reorganized in 2002. Out of which the Media Bureau is responsible for licensing and supervising cable, television stations, radios and direct broadcast satellite systems. Consumer & Governmental Affair Bureau covers all kind of consumer related

116 WAYNE OVERBECK, MAJOR PRINCIPLES OF MEDIA LAW 437-452 (Thomson Wadsworth, ed. 2004). 63 matters and maintains contact with state and local government. International Bureau has power to license shortwave stations whose signal crosses international. Enforcement Bureau enforces FCC regulation with respect to compliance of technical standards; Wireless Telecommunications Bureau regulates domestic wireless paying, amateur radio, cellular telephone and similar service whereas Wireline Competition Bureau regulates landline telephones and other common carrier communication. 117

Apart from above mentioned Bureau, FCC has central administrative staff, legal staff, science and technology office and plans and policies office which are specialized bureaus.

5.2.2 Broadcast Content and Cable Television Regulation

Communication Act, 1954 and Telecommunications Act, 1996 govern broadcast content along with other Federal laws. Many restrictions including fairness doctrine which was one of the most controversial content regulations have been abolished.

One of the most important aspects of broadcast content regulations are regulations pertaining to political broadcasting. Section 315 of Communications Act, 1934, mandates broadcasters to provide equal time and equal opportunity to all legally qualified candidates for any public office.

Cable television system does not require FCC license but as its operation can affect on-air- broadcasting so it is subject to many FCC rules and regulations. Telecommunication Act, 1996 has repealed some of the rate-reduction many rules established by Congress in 1992. 118

5.2.3 Analysis

In order to critically examine the nature of Indian media regulation, it is indispensable to study and analyze the media regulation system of United Kingdom and United States of America. We have already discussed about the media regulation system of United Kingdom, now let’s look at the media regulation system of United States of America. Since USA has been a hegemonic power, thus, its democracy and its constitution has influenced globally.

John Stuart Mill, an English political philosopher has defined the limits of freedom of and authority in the modern state in his popular work ‘On Liberty’, published in 1859. Mill argued

117 DON R> PEMBER, MASS MEDIA LAW 588-625 (Mc Graw hill, ed. 2001/2002).

118 Id. 64 that the role of press was very significant in countries like USA and England during mid 19 th century as it was a pillar against totalitarian government.

The most significant aspect of the media regulation system of United States of America is the First Amendment dealing with freedom of press. The amendment clearly states that any law which abridges the freedom of speech or freedom of press shall not be making by Congress. Although, in Schenct vs. US 119 , 1919 case, Supreme Court held that the freedom of speech and press can be abridged for the national interest and Congress has the right to do so. The national interest is above all freedom and rights, thus, first amendment is not absolute. In another case, Supreme Court held that freedom of speech under first amendment does not apply to obscenity.

The broadcaster rules are more complex in United States of America as compared to regulation for print media. FCC, a law-making as well as an executive body, governs the electronic mass media. It provides licenses, supervise those licenses and also perform judicial functions to penalize those who violate its rules. However, it has limited power and it is supposed to follow “due process of law” as per Fifth Amendment, First Amendment and other provisions of Constitution.

119 (249 U.S.47) 65 CHAPTER 6

CONCLUSION AND SUGGESTIONS

In conclusive remarks, the researcher seeks liberty to reiterate the position suggested at the beginning of this paper: media regulations suffer from grave lacunae’s and the legislative branch of the Country is not well equipped with laws in its repertoire to curb the menace of excessive and selective control on media agencies and free independent flow of information through media. As written in the earlier part of the paper, the three types of media agencies overlap and there is no single institution to effectively govern them collectively with penal sanction for non compliance of its orders or directions.

Regulating media effectively, subject to my limits of comprehension, is perhaps the most vital and important topic concerning the nation today. The tension lies between the factum that media must remain independent and the state must not have a control over it in such a nature that the freedom of expression is compelled to favour a particular ruling establishment or its allies. On the other hand, media must be answerable and accountable to another independent agency with which, a power to pull up the strings wherever necessary lies. It is equally important to protect media agencies from getting concentrated in the hands of selected corporate giants with frequently changing affiliations with the political superiors. The corporate control on media agencies makes it suffer from the problem of curtailment when practitioners of power deem it fit to do so.

India is a unique country with extreme levels of geographical and cultural diversity. As a contemporary liberal democracy which is being troubled with the problems of censorship, limits of tolerance, hate speech and free speech, India needs a detailed Media Code with a proper regulatory infrastructure which reconciles the two major limbs of the issue i.e. skeptical political attitude towards state’s claim that legitimate restrictions can be crafted and the other granting wide independence powers towards prioritization to free reporting. It must also be borne in mind that media cannot be allowed to violate settled norms of individual or personal autonomy in lieu of principles of social or institutional autonomy granted to it under the ambit of the Constitution.

In a slugfest between contours of free speech and regulated media, the prized possession in the hands of mooters of absolutely free media is Article 19(1)(a) of the Constitution while the

66 advocates of regulated media fight with its collegiate accessories in Article 19(2). The menace created by non-regulation of media is slowly reaching epidemic proportions in India. It is here where the dilemma between justice and power as pointed out by Blaise Pascal becomes even more relevant. Pascal famously wrote – “Justice without power is inefficient; power without justice is tyranny. Justice without power is opposed, because there are always wicked men. Power without justice is soon questioned. Justice and power must therefore be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.”

Eminent jurist John Stuart Mill who is noted for providing the first philosophical defence of free speech in modern times in 1869 wrote in his classic book ‘On the Liberty of Thought and Discussion’ that a free exchange of ideas and opinions was the only method of arriving at the truth. It is truth and freedom of imparting the truth and nothing but the opinion free truth, which needs to reach the citizens through media. Mill has argued effectively that opinions can be right or wrong or true or false, but there shall only be one truth and that is exactly what the media must report freely, if it does not, the regulatory body as suggested by the researcher must penalize it.

The Government must take up steps for thorough implementation of legitimate restriction imposing techniques upon the freedom of speech and expression of Media while keeping in mind that its essence lies in the extent of permissible independence it exercises. In this lies a big challenge to the Judiciary & the Parliament.

After discussing the ways through which media can be regulated in Chapter 4 by analyzing approaches like self-regulation, state regulation and independent regulator, it can be concluded that state regulation can interfere with the independence and autonomy of press and hence the same is not recommended. With respect to self-regulation, it can be said that it has been failed miserably in India as in the case of NBA which deals with news media.

Although Press Council of India is a statutory body but according to the composition of the council, more or the less it works like self regulatory only. Both PCI and NBA have failed to curb unethical practices by media and often termed as toothless tiger. Reference can be drawn from Leveson inquiry which was discussed under Chapter 5 where Press Complaints Commission, a self regulatory body for press was replaced with an independent regulator, Independent Press Standard Organization.

67 Hence, sanction is required to compel media to work in a legal and ethical manner. But this should not be done by a government body and it will be better to establish an independent regulator which will also ensure media autonomy and independence against government interference. The measures adopted by media to increase rating are highly unethical and sometimes illegal also. Questions have been raised several times as to what should be done in this regards should the license of editor/journalist be suspended or should heavy fines be imposed against media houses that do not conform to regulations. Also should the prison be the last resort when the above mentioned options fail to work.

There is an urgent need that something should be done to curb the unethical and even illegal practices by media. In almost every profession there are some rules and regulation which has to be abided by the professionals, for instance Bar Council of India and Medical Council of India regulates the conduct of Legal and Medical professionals respectively. And in case of any breach of rules and regulations of their respective codes, provisions for punishment are provided based on the proximity of the act which includes heavy fines, cancellation of license etc.

So, the same rule should be followed with respect to journalists/ media professional as all three profession including journalism, medical and legal are considered as noble and hence all are more or less at the same footing. Media has nowadays become unruly horse and corrupt, defamatory and reckless media houses are repeatedly ignoring the warning from the self- regulatory bodies which shows that there is an urgent need to set up an independent regulator for media which protect the independence of media as well as regulate it. As current regime of corrupt, unregulated, politically complicit and crony-capitalist media in India is undermining rather than aiding democracy.

There should be independent regulatory body for each medium of media i.e. print, television or radio as there cannot be uniformity of regulation if the form itself can be distinguished. Press Council of India need to be abolished and replaced by a new independent regulatory body as it was formulated in 1978 when the technology was not so advanced. Also, new independent regulatory authority established by media itself be it for print, television or radio should be free from any kind of influence from government or industry and governed by an independent Board. It should also contain necessary punitive powers which includes heavy fine, suspension of license etc. Members of board should not consist of serving journalist,

68 government members and members of Parliament to ensure impartiality, non-interference of government.

Although, Prasar Bharti in India has been made an autonomous body but has lot of government interference as recruitment is done by Ministry of Personnel and many instances have been happened where recruitment to Akashvani and All India Radio done was said to be unfair as done to candidates favoured by Union Ministers. In this regard, that autonomy should be given to Prasar Bharti in true sense and an independent regulator should be established to work in a free and fair manner.

Even to regulate electronic media in India, News Broadcaster Association is the self regulatory body but its decision is binding on members of organization only. From many years it is seen as a body with lack of enforcement powers as the Association fined India TV for violation of norms but then the channel walked out from the organization. Later the decision was withdrawn by association and then channel joined the association. This instance points out serious concern and can be sorted out by making it mandatory for the entire news channels to be part of new independent regulator and a reference can be drawn from UK where newspapers which are not part of IPSO has to be governed by Office of Communication. It will help in regulating news channel so as to curb the unethical and illegal practice.

With regard to Cross- Media Ownership, there are no specific rules in India unlike UK and US which helps in upholding freedom of speech and expression. In UK, religious and political organizations are not allowed to get license for broadcast which is restricting freedom of expression whereas in India, there is no such law which is appreciable as media houses are owned by many corporate houses, it will not be fair to say that religious/ political organization will impart their own views because same can be the case for corporate houses also as they are profit making organization.

As we all know that media keeps harping about freedom of speech and expression provided under article 19(1)(a) but often forget that it is subject to reasonable restrictions mentioned under article 19(2) of Indian Constitution.

Another important recommendation with regard to granting license to journalist, there should be a qualifying exam pertaining to the legal framework of media in India which also covers guidelines, norms and ethics to be followed by media professionals to get the license for 69 journalism. It should be on the lines of All India Bar Examination which has to be cleared by legal professionals in order to practice in the court of law. It will help journalists to know their rights, duties and limitation with respecting to reporting and broadcasting news. This examination should be made mandatory for all journalists who are entering in media profession after the year 2016. This will help them to understand legal implications of media reporting with respect to national security, defamation & contempt laws which will ultimately strengthen democracy and faith of public on media can be restored.

Following are the suggestions and recommendations to improve media regulations in India:-

• There should be different regulatory bodies for each medium of media i.e. print, television or radio as there cannot be uniformity of regulation if the form itself can be distinguished.

• Press Council of India composition should be amended under section 5 of Press Council of India Act, 1978 where working editor/journalist and Members of Parliament should not be allowed to be part of Council to avoid conflict of interest and government interference. Former journalists/editors and eminent scholars of media law should be part of Council which should be selected from a panel elected by Press organizations.

• Section 14 Press Council of India Act, 1978 should be amended and Power to suspend license and impose heavy fines should be added other than power to censure on the lines of Advocates Act, 1961.

• Press Council of India should be given sufficient powers and inference can be drawn from Insurance Regulatory Authority of India and Security Exchange Board of India which are standard authority in their field and are effective as well.

• News Channels should be made mandatory to be a part of News Broadcaster Association and Power to suspend license and impose heavy fines should be given to the same.

• Section 4 and 10 of Prasar Bharti Act should be amended to restrict members of Government to be a part of Corporation and Board in order to provide autonomy to Prasar Bharti in true sense.

70 • Whistle blowing hotline for journalists and submission of annual statement about the details of compliance of code of ethics to the regulator should be made mandatory as in UK as to bring safety and uphold responsible journalism.

• There are no specific rules with respect to Cross-Media Ownership and the same should not be made although recommended by TRAI as media houses are owned by many corporate houses, it will not be fair to say that other organization i.e. religious/ political organization will impart their own views because same can be the case for corporate houses also as they are profit making organization.

• There should be a qualifying exam to work as a journalist/media person and same should cover the legal framework of media in India including guidelines, norms and ethics to be followed by media professionals to get the license for journalism. An inference can be drawn from open book All India Bar Examination to practice in Court for Advocates.

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