Freedom of Press in India from the International Point of View
March 23, 2021
The Media plays an immensely important role in society and has often been called the ‘fourth pillar‘ of democracy. Ever since the advent of nation-states and liberal democracies, the press has played a monumental role in shaping public discourse and influencing the political conversation. Keeping this power in mind, there is imperative to ensure that the press can operate free from influence. The State is often one of the largest violators of media freedom, and its vast regulatory powers have often been misused to stifle the activities and the freedom of the press, to the detriment of the people. This piece seeks to examine the Freedom of Press in India, with a focus on the freedom the press is provided in International Law.
Legal Architecture of Freedom of Press in India
Article 19(1)(a) of the Constitution of India lays down the freedom of speech and expression; this right has been extended to the media as well. This topic has been the subject of several major legal disputes. One such case was the landmark case of Romesh Thappar vs. State of Madras. The Journal Cross Roads’ circulation was banned in Madras by the Madras Maintenance of Public Order Act. The Supreme Court held that the Act was void because “public order” was not an exception to freedom of speech and that the law gave the State vast powers to suppress freedom of the press. This is considered the first landmark case in the context of press freedom. A similar case with a similar outcome was that of Brij Bhushan vs. State of Delhi.
Another relevant case is that of Sakal Papers vs. Union of India. The Central Government had passed the Daily Newspapers (Price and Page) Order (1960), which fixed a cap on the price a newspaper could charge, on the basis of the size, content, and the number of pages. The Government argued that this was a justified business decision that reasonably restricted Article 19(1)(g). The Court disagreed and struck down the Act, ruling that this business decision actually violated the freedom of speech and expression that a newspaper enjoyed under Article 19(1)(a), and since a business consideration could not restrict the freedom of speech, the Act was struck down.
Although the above decisions illuminate that the media has the right to freedom of speech and expression, this right is not absolute and can be reasonably restricted by any of the grounds mentioned in Article 19(2) by the Legislature. A few of these are Security of the State, Friendly Relations with the Foreign States, Defamation, Decency and Morality, Contempt of Court, Threatening the Sovereignty of India.
Apart from the judicial restraints, there are several administrative bodies that restrain the press and ensure that standards are being applied by them. The Press Council of India is one such organization. It is a statutory body created in 1966, with the central aim of maintaining press freedom and ensuring the quality of reporting. It issues the Norms of Journalistic Conduct, which are guidelines that have to be followed. The PCI has the power to receive complaints about violations of journalistic ethics, and can also take action in case of professional misconduct by editors or journalists. It has the power to summon witnesses, take evidence, and find parties guilty for violations. It has two major restraints: it can only exercise oversight over print media, and it cannot penalize violations.
The second regulatory body is the News Broadcasters Standards Authority (NBSA). It is a nine-member body that consists of members from the media. Importantly, it is a self-regulatory body: it does not have any governmental backing, nor is it statutorily ordained. Despite this, the NBSA has generally been respected and historically its decisions have been heeded. However, there had been a controversy surrounding NBSA and Republic TV in 2020, which had led to the formation of a parallel body called the National Broadcasting Federation (NBF).
Lastly, the government can also issue media policy, as it did in Jammu and Kashmir after the State was converted into a Union Territory. In this policy, the government introduced extensive changes aiming to target anti-social or anti-national news. Firstly, it went about creating a list of impaneled organizations that would be eligible to receive government advertisements if they fulfilled certain norms. It also called for background checks of journalists and stories, and lastly aimed to foster cooperation with the news authorities and the security agencies. While these matters have been of great controversy, it nonetheless demonstrates the authority of the government to regulate the media.
Freedom of Press in International Law
Although India has a detailed framework for regulation, how does it accord with international law? International law is deeply concerned with media rights and the right to freedom of speech and expression. Article 19 of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights codifies the right to freedom of expression. The United Nations has repeatedly emphasized that media freedom is crucial to a democratic setup.
International human rights law and international humanitarian law recognize the special importance of journalists and confer special rights and protections to them. In times of armed conflict, journalists are provided the same protection as civilians and they have additional rights to the film, take interviews of civilians and combatants, and take pictures or make recordings of any sort. Despite these protections, journalists have to bear a brunt of violence, oppression, and torture worldwide. According to Reporters Without Borders (RSF), 50 journalists were killed in 2020. 387 are currently in prison for doing their work. India is among the top 5 nations in cases of deaths of journalists. In fact, India’s actions in the field of press freedom have attracted a large amount of criticism from international bodies, especially in Kashmir.
Freedom of Press in India
Press freedom in Jammu and Kashmir has been severely affected. On the 5th of August, 2019, the government imposed a blanket communications blackout. With the internet not available, this soon became the longest internet shutdown in history. Further, India also has the largest number of internet shutdowns in the world. Internet is only available at government facilities, and asking journalists to go to government centers during a pandemic is cruel. The broad restrictions that have been placed by the new government policy are also a step towards an authoritarian, all-controlling government.
Further, there has also been a practice of arresting journalists without an order and without providing information about their whereabouts. Some journalists are also arrested on spurious charges that are simply to intimidate the entire community. The Office of the Human Rights Commissioner has also criticized India, among other Asia-Pacific nations, for censoring news and imposing restrictions that went beyond the stated purpose of suppressing fake news and led to the suppression of press freedom in general.
The Press is usually supposed to voice its opinions freely and without fear, but the situation in India has been rapidly deteriorating. Journalists have been beaten up by mobs, often as the police are watching. News agencies critical of the government face multiple lawsuits and a hostile press atmosphere. Further, the State exercises its regulatory function to essentially censor views it does not agree with. For example, the Government recently put out a circular that stated that all webinars that were being held would need to have the content and background speakers scrutinized by the government, and the webinars could not be held before this go-ahead is given.
This absurd action is nothing but a ploy to ensure that news critical of the government can be suppressed. Journalists have been arrested under draconian anti-terrorism laws and have been languishing in jail for years without any legal recourse. Sedition laws are regularly invoked and young activists are arrested on legally unfeasible charges. This all comes in the backdrop of a concerted attempt to criminalize dissent and chill those who disagree with the government from speaking out.
Press freedom in India has a very rich history. Unfortunately, the current status of the media is a black mark on the vibrant history of the Indian press, where lions like Bal Gangadhar Tilak and Mahatma Gandhi gathered broad support for the freedom movement and awoke the sleeping masses with their insightful and energetic news pieces. Unfortunately, the situation today is where there is a suppression of media freedom and an atmosphere of danger for media that do not toe the State’s line. This has been especially devastating in Kashmir, where internet restrictions have led to the downfall of online media and arbitrary arrests have led to the criminalization of journalism. This is in the broad backdrop of a general criminalization of dissent. These are blatantly violative of the norms of international law, something which international agencies have reiterated over and over.
It is time for the nation and its people to realize that the road currently being traveled is not only unlawful, but can also lead to the downfall of democracy, and hence it is imperative to restore press freedom and ensure the dignity of journalists.
Editor’s Note It is a well-known fact that Media is considered to be the fourth pillar of a democracy. Consequently, press freedom is crucial to a democratic setup. This article highlights the importance of press freedom. The author has explained the legal architecture as well as the regulatory framework related to press freedom in India, with particular reference to press freedom in Jammu and Kashmir. The article also throws some light upon press freedom in international law. The author has concluded by saying that in order to avoid the downfall of our democracy, it is crucial for us as a nation to restore press freedom and protect the dignity of journalists.