Author: - Ankur Srivastava
5th Year B.A. LL.B
Chandigarh University, Chandigarh
ABSTRACT: The power and importance of media in a democratic society are world-famous. Although the media and the press only have persuasive authority, its true potential is no secret to the world. The important role of the media is the ability to mobilize the thought process of millions of people. The existence of a free, independent, and powerful media is the cornerstone of a democracy, especially of a highly mixed society like India. But with the rise of the press and its power to reach every corner of the state, it is considered as the fourth pillar of democracy. In the Indian constitution, the words Freedom of the Press are not explicitly mentioned, but this implication is Article 19 (1) (a), that is, free speech and expression from the fundamental right of every citizen and also the media to use the same right. The apex court of India has also held that although the freedom of speech and expression of media is not explicitly guaranteed as a fundamental right, it is enshrined in the constitution as freedom of free speech and expression. This paper highlights the impact of the press on Indian democracy and our constitution while trying to answer whether it is right to consider the press as the fourth pillar of democracy. Hence, it has been divided into two parts by the author. First, by analyzing the historical development of the press from a common means of mass communication to an instrument of revolution in democracy. Its main focus will be on the role played by the media in various fields, especially in Indian society. Secondly, to what extent does the press influence the Constitution of India. This will focus on the role of media in the constitutional and judicial field of India.
The media, regarded as the fourth pillar of democracy in popular discourse, has the responsibility of informing the citizens. The larger building of democracy is placed on the other three categories of pillars. Together, they maintain and automatically reflect the decisive role that needs to be played in an egalitarian society.
Media nowadays is playing with the sentiments of society to take unfair advantage and earn more money. This is the same media that was once the eyes, ears, and mouth of society. Now, it has reduced to primarily showing false and fabricated news content to society.
Media makes us aware of various social, political, and economic activities around us. It is like a mirror revealing to us the bare truths and harsh realities of life. For any news media, its main function is to inform people about fair news without any censorship or tampering. People always rely on real and honest news. The media also has its own opinion. Democracy represents the rule of the people, through an elected representative. One feature of the democratic system is the freedom of expression provided in the Constitution.
For a democratic system to function to its fullest potential, participation on a part of the public is all the more important, requiring the dissemination of credible information to the public on increasingly public issues. This is where mass media comes into the picture. The media is considered as the weapon of both sides. An accountable media can elevate the nation by providing strong support for its development and an unaccountable media can create chaos in society.
The Constitution of India did not talk about the media in particular, but an inference has been drawn from Article 19 (1) (a). A free and fair media is an important aspect of civilized society and any form of oppression of the media by any means is unjust, unbearable, and a threat to free speech and expression of the society. Media is the voice of the public. It is the stage where voices are made, spread, and heard like fire in the forests. It connects one to the other and is helpful in many ways.
The media can also be very cruel. Competition and the race for market control have affected its reputation to a great extent. The media has the power to influence people more easily than any other medium because it has a direct impact and a wide appeal that can easily change a person’s perception. Media is a non-state actor that is distinct from the state and all other social actors. Ideally, the media acts independently on behalf of citizens, and against the state and other interests. However, the practicality of media around the world is complex, varied, and rapidly changing.
Media laws are similar to the Constitution of India, which means that they are somewhat rigid, yet flexible at the same time. Article 19 of the International Covenant on Civil and Political Rights, states the right to freedom of expression, that every person should receive all kinds of information and receive the freedom of intervention and ideas, whether of any limitation, either orally, written, printed, in the form of art, or by any other means of their choice.
2. EMERGENCE OF MEDIA IN INDIA: HISTORY
Indian media had been active since the beginning of the 18th century with print media in the late 1880s, radio broadcasting in 1927, and screening of moving photographs of Auguste and Louis Lumiere beginning in Bombay during July of 1895. It is one of the oldest and largest media businesses in the world. There exist different types of communication mediums including television, radio, cinema, newspapers, magazines, and internet-based websites/portals.
The media in India has been free and independent throughout most of its history, even before the establishment of the Great Indian Empire by Ashoka the Great on the foundations of righteousness, openness, morality, and spirituality. Even in independent India, there was very little government interference, but after the Emergency (1975–1977) declared by Prime Minister Indira Gandhi, a crucial period for Indian media began as it had to face potential government intervention.
3. LAWS GOVERNING MEDIA IN PRE AND POST INDEPENDENT INDIA
1. The Censorship of Press Act, 1799
Lord Wellesley regulated the possibility of a French invasion of India. It imposed almost wartime press restrictions, including pre-censorship. These restrictions were relaxed under Lord Hastings with progressive ideas and in 1818, pre-censorship was lifted.
2. The Licensing Regulations, 1823
The then acting Governor-General John Adams, who had reactionary views, implemented the regulation. According to these rules, starting or using the press without a license was a punishable offence. These restrictions were mainly directed against Indian-language newspapers or those edited by Indians. Miriam-ul-Akbar of Rammohun Roy had to stop his publication with the publication of this Act.
3. The Press Act of 1835 or Metcalfe Act
The Metcalf Governor-General (1835–36) repealed the 1823 ordinance and earned the title “Liberator of the Indian Press”. The New Press Act (1835) requires a uniform declaration for a printer and publisher to give an accurate description of the premises of a publication and cease to function. The result of a liberal press policy was the rapid growth of newspapers.
4. The Licensing Act, 1857
Due to the emergency caused by the Revolt of 1857, the Act imposed a license ban of any kind other than the pre-existing registration process prescribed by the Metcalf Act and the government prohibited the publication and circulation of any book, newspaper, or printed matter Rights reserved.
5. Vernacular Press Act, 1878
This act gave the British power to curb the newspaper which was printed in Indian languages. The people had a strong opinion against Litton’s imperialist policies, narrowed by the terrible famine (1876–77) on the one hand, and on the other, spent largely on the royal Delhi court. The Vernacular Press Act (VPA) was designed for ‘better control’, which better prepares the Vernacular Press and effectively punishes writing and writing.
6. Indian Press Act, 1910
The act revived the worst features of the Vernacular Press Act – the local government was empowered to demand protection of registration from the printer/publisher and registration/security if it was an abusive newspaper and a copy of each newspaper. The printers of a newspaper were required to produce copies for free to the local government.
Legislation after independence
1. The Press Enquiry Committee, 1947
The committee was formed to examine press laws in the light of fundamental rights prepared by the Constituent Assembly. It recommended repealing the Indian Emergency Powers Act, 1931, amendments to the Press and Books of Registration Act, amendments to section 124-A & 156-A of IPC, among others.
2. The Press (Objectionable Matters) Act, 1951
The Act was passed with an amendment to Article 19 (2) of the Constitution. The Act empowered the government to seek and forfeit protection for publication of “objectionable matter”. Victim owners and printers were empowered by the jury to seek trial. It remained in force till 1956.
3. The Press Commission under Justice Rajadhyaksha in 1954
The Commission established the All India Press Council in 1954, fixing the press page schedule system for newspapers, banning crossword puzzle competitions, developing a strict code of advertisements by newspapers, and the desirability of preventing concentration in the ownership of Indian newspapers recommended.
4. DEMOCRACY AND MEDIA
The modern era is generally regarded as the age of representative democracy, and mass media is an informal but essential component of that representative democratic politics. The fact is equally important that a democratic polity is an institutional guarantee of a free, fair, and bold media. Although there is a long list of civil rights and freedoms, and every right and freedom has its importance and contribution in the development of a ‘political person’, but of course, out of this long list, one of the most important civil rights is Freedom of thought, speech, and expression.
One of the most notable supporters of the link between freedom of speech and democracy is Alexander Miklenjoh. The concept he argued upon is ‘democracy is people’s government’. According to Meiklejohn, democracy will not be right for its ideal if those in power can woo voters by stopping criticism of information. He further stated or acknowledged that the desire to manipulate opinions may arise to benefit society. The media at large cannot be regarded as a neutral institution committed solely to the public good for its organizational structure and its commercial interest. Thus, ownership of media organizations matters a lot in defining the purpose and role of media in a democracy.
5. MEDIA AS A PROBLEM
We have a rich tradition of independent journalism. Most of the major scandals were unearthed by the press. The media is playing an important role in society and no one can deny that. However, it is also true that there is a problem with their fraternity at the same time. The media sometimes only shows inaccurate news, views, and reports to increase their Television Rating Point (TRP) for their channel. Some of the biggest faults in the context of media include defamation, contempt of court, and media trials that hinder the media’s credibility to a great extent.
In India, defamation can be seen as a civil as well as a criminal offence. Simply put, it is defined as the publication of content that is intended to harm the reputation and personal interest of another person. The legal protection against defamation is provided under the Law of Torts. In civil defamation, an aggrieved party may move the High Court or subordinate courts to seek damages in the form of monetary compensation from the accused. Sections 499 and 500 of the Indian Penal Code, 1860 also allow the victim to file a criminal case of defamation against the accused. It is a bailable and non-cognizable offence in nature, with imprisonment which may extend to two years, or with fine, or both.
The constitutional validity of defamation law is explained by the Supreme Court in Subramanian Swamy v. Union of India where it was held that the defamation laws and rules were not in conflict with the right to speech. The apex court also stated that one is bound to tolerate criticism, dissent, and discord but is not expected to tolerate an attack of defamation.
7. MEDIA TRIALS
The folklore of journalism is like a funhouse of mirrors that one finds in a carnival. You are too fat in a reflection; in the second you are absurdly thin; in another reflection, you appear to have a long neck or a flat head. You just stand in front of these bizarre reflections, and despite being fully formed, you see the little resemblance with yourself in any of the portraits. The media plays an important role in shaping the opinion of society and it is capable of changing the whole approach through which people experience various developments. However, a coin always has two sides. Due to this increased role and importance of the media, its accountability and need for professionalism are now more heightened than ever.
In an increasingly competitive market to grab the attention of viewers and readers, media reports often turn to distortion of facts and sensationalism. There have been several instances in recent times where the media interviewed only the accused/victim and passed a verdict on the matter before the court could pass its verdict. The television and newspaper coverage of an issue affects the person’s reputation by creating a broad perception of guilt regardless of any verdict in a court of law. This phenomenon is popularly called a media trial.
Some famous criminal cases like the Priyadarshini Mattoo case, the Jessica Lal case, the Nitish Katara murder case, the Bijal Joshi rape case, the Aarushi Talwar double murder case and most recently the Sushant Singh Rajput case have seen media intervention of epic proportions. In the case of Sushant Singh Rajput, the media named actress Riya Chakraborty as the murderer of the late actor in the eyes of the public without a proper judicial trial could even begin. The media defamed the individual’s personality and reputation without any action in the court.
In the landmark judgment of State of Maharashtra v. Rajendra Jawanmal Gandhi, the Supreme Court observed that there is a process of law that governs the conduct of the trial of a person who is accused of a crime. A simultaneous trial by the press, electronic media, or public movement is very much opposed to the rule of law and it can lead to a miscarriage of justice. Furthermore, it cannot be ignored that those who become accustomed to the routine spectacle of pseudo-trials in the news media may, in the long run, have a difficult time accepting the court’s judgment, which may have disastrous consequences.
The Law Commission in its 200th report, titled Trial by Media: Free Speech versus Fair Trial under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has recommended to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of the arrest.
The Commission has stated, “It is felt today that given the widespread use of television and cable services, the entire pattern of news publishing has changed and many such publications have a prejudicial effect on suspects, accused, on witnesses, and even judges and administration of justice in general”.
According to the commission, this is criminal contempt of court. If the provisions of the Act impose reasonable restrictions on the freedom to speak, such restrictions will be valid. The media strongly opposes this sub-judice rule and complains that during the trial, the court tries to interpret the rule strictly to prevent discussion of any issue before the court, even if they are attracting public attention. Therefore, there is an urgent need to liberalize the sub-judice rule, only to apply it in cases where there is a clear intention to influence the litigation and there can be no remote possibility of affecting any action.
From the above account, it becomes clear that the media has had a negative rather than a positive effect. The Judiciary should properly regulate the media. The media sector was considered to be the most important aspect to voice-out and hear the society, but its credibility is being hampered to a great extent by changing moral values and increasing commercialization. The wrong should be condemned and the good should be appreciated by the media based on merit. There is a need for greater emphasis on fair reporting to regain the lost credibility of the media.
Earlier, journalism was not under pressure to increase TRP ratings or sales. So, the journalists did their work with serious intent, conviction, courage, and loyalty. They did not convict people without making a serious effort to study the allegations, investigate them, and come to their independent conclusions without fear or favour. They did not concern themselves with what the bureaucracy said or what the politicians accused them of. This is why people trusted him. But now we simply don’t. Media sees a different self-styled role as the one that conducts public media trials.
Those in power in the government manipulate the media to serve their interests or to hurt their rivals. The media trial has now evolved and it now pronounces its decision and also the ‘appropriate’ punishment, which is undoubtedly an illegitimate use of their liberty. By getting ahead of themselves and their role as the fourth pillar of democracy, the media has defaced the judicial demarcation of legal boundaries. Coupled with the support of political influence, it is subverting one of the most important institutions of the country i.e. the Indian Judicial System.
The author in the paper represented the view that “with great powers, comes great responsibility”. If the Media is considered to be the fourth pillar of democracy, in addition to the other three i.e. Legislature, Executive, and the Judiciary, then they should perform their duty by being equally responsible and accountable in every situation or circumstance that requires their involvement.
Present-day perception of Indian media is that it is over-dramatic, sensational, inaccurate, and unethical. These faculties are entirely opposed to the responsibility that has been given to the media. The issues which are far less relevant for society, are the ones that are majorly being discussed on television. On the contrary, the media must make citizens aware by providing accurate and relevant updates on issues regarding socio-economic crises like women-safety, low GDP growth rate, and India’s deteriorating relations with its neighbours.
Instead of doing this, the temptation to humbly present trivial stories, to satisfy media managers for commercial considerations, remunerative careers, or promotions, is being realized. In the temptation to publish stories that sell well, the media is going after ‘public is interested in’, rather than ‘what is in the public interest’.
Having said this, it also needs to be understood that any undue control over media in a democracy will also put society at large risk. Therefore, the law needs to be tailored to the changing needs of society. This is required to ensure that the people believe that the media, in its pursuit of truth, is only exercising its rights, without violating any provision of the law of land.
If this disconnect between the liberty of the media and the regulatory laws is not fixed at the earliest, it will pose a serious threat to the future of democracy in India. This problem can be solved in two ways. First, through a democratic method, through discussions, consultation, and persuasion. The second way is by using retaliatory measures against the media, for example, by imposing heavy fines on defaulters, stopping government advertisements for them, suspending their license, etc. if they abuse liberty and freedom by working against the public interest. The reliability of the media rests on unbiased, objective reporting. It is in the interest of the media to ensure that it facilitates and does not interfere with the administration of justice in society.
 Hon. Dr Victor Dan-Jumbo, Pillars of Democracy (first published 2014, hillsberg).
 See: The Hans India, Pre-independence regulation of Indian newspapers, 13th March’ 2015, available at: https://www.thehansindia.com/posts/index/Education-and-Careers/2015-03-13/Pre-independence-regulation-of-Indian-newspapers/137007.
 AIR [W.P. (Crl) 184 o 2014.
 Crl. A. No. 838 of 1997 (Arising out of SLP (Crl.) No. 1560 of 1997.
 See: Nimisha Jha, Constitutionality of Media Trials in India: A Detailed Analysis, 13th November ’2015, https://www.lawctopus.com/academike/media-trials-india/.