Some of the tallest names in the Indian Independence movement were not just united in their opposition to the British Raj but were also united by a common bond — they were journalists.
Journalists in India do not have any specific free speech provision. Their free speech is same as any other citizen and remains subject to reasonable restrictions. Moreover, in the absence of any ‘shield law’, there is no protection of source confidentiality.
Some of the tallest names in the Indian Independence movement were not just united in their opposition to the British Raj but were also united by a common bond — they were journalists.
Pandit Jawaharlal Nehru ran National Herald, Mahatma Gandhi ran Indian Opinion, Young India, Navajivan, and Harijan, Bal Gangadhar Tilak ran Kesari, Madan Mohan Malaviya ran The Leader, and Pandit Motilal Nehru founded The Independent. Their papers not just reported news but also carried out a crucial duty taught in introductory classes of journalism schools today — speaking truth to power.
This is why it’s surprising that when India won hard-fought freedom, freedom of the press was not enshrined in the Constitution and no particular legal safeguards were introduced. Instead, regulations were placed that hindered the free press.
Though press laws in India are not ‘draconian’, there is no specific constitutional freedom of press, notes Prof. M Neelamalar in his book Media Law and Ethics.
“Constitutionally, ‘freedom of press’ was granted under the broad spectrum of ‘freedom of expression’ in Article 19 1(a). Since then, media law in India is mostly regulatory in nature rather than draconian, though there were attempts being made to curb or restrict the freedom from time to time,” notes Neelamalar.
Two of the earliest examples, during the tenure of Jawaharlal Nehru, were the Press (Objectionable Matter) Act, 1951, and The Newspaper (Price and Page) Act, 1956. While the former was repealed in 1957, the latter was struck down by the Supreme Court as unconstitutional in 1962.
The Objectional Matter Act was aimed at publication of content related to “incitement of crime and other objectionable matter” and the Price and Page Act regulated the number of pages, size of pages, and proportion of news and advertisements in the paper.
The regulatory framework has evolved over the years as has the media itself. With the emergence of broadcast media and then the digital media, new regulations have also come up which mostly regulate media rather than enable it to work freely. The Press Council of India, the apex organisation meant to ensure freedom of press, has often been labelled as a ‘toothless tiger’.
In addition to all other laws in India that extend to journalists and media organisations as well, media laws have been made with the medium in mind, which means that print, broadcast, and digital media organisations are regulated differently.
Press Council Act, 1978
The law establishes the Press Council of India (PCI) “for the purpose of preserving the freedom of the press and of maintaining and improving the standards of newspapers and news agencies in India”.
The PCI regulates the media organisations under its ambit and is aimed at ensuring the laid down code of conduct is followed. It also receives and acts on complaints filed by people over media activities.
The PCI has been criticised over the years for being a 'toothless tiger', which has neither managed to regulate malpractices in the media nor been able to stand up for mediapersons’ rights.
Cable Television Networks (Regulation) Act, 1995
With the emergence of cable television in 1990s, the government felt the need to bring a new set of rules to regulate this medium, so the Cable Television Networks Rules were brought in 1994, followed by the Act in 1995.
The law mandates that no television channel or cable services can be provided without registration with the government. The law also lays down punitive actions.
Section 11 gives the state power to seize equipment of operators under a certain set of conditions, such as operation of television network without registration, not showing a list of compulsory channels, and violations of programme and advertisement codes.
Under Section 20, the government may ban the operation of a channel.
“Where the Central Government thinks it necessary or expedient so to do in public interest, it may prohibit the operation of any cable television network in such areas as it may, by notification in the Official Gazette, specify in this behalf,” says the law, listing the following grounds for such an action: i) sovereignty or integrity of India; or (ii) security of India; or (iii) friendly relations of India with any foreign State; or (iv) public order, decency or morality.
Digitial Media Rules, 2021
For years, the digital media remained free of any specific regulations, but that changed in 2021 when the Union government brought in Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The rules address the social media platforms, messaging apps, and news media. For social media and messaging platforms, the key provisions related to identifying the originator of any message, which has come under criticism for violating right to privacy and the end-to-end encryption which is a key premise of apps like WhatsApp and Telegram.
For digital news media, the rules lay down a three-tier regulatory framework: (i) self-regulation by publishers, (ii) self-regulation by associations of publishers, and (iii) oversight by the central government.
It is the third tier of the mechanism —government oversight— that has come under criticism. The government will form an inter-departmental committee under the provisions of the rules to hear grievances that escalate to this tier. This committee will constitute “representatives from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, and such other Ministries and organisations, including domain experts”, as per the rules.
It has been flagged that, with such a provision, the regulatory powers have gone to the government rather than a special dedicated body, such as Press Council which is at least considered to be independent on paper.
“The oversight mechanism for content regulation in case of news in print is under the Press Council of India (PCI), which is an independent statutory body...For similar functions in case of digital news media, the oversight mechanism will be under the Ministry of Information and Broadcasting. Thus, the oversight mechanism for digital news is not through an independent statutory body unlike that for print publications,” notes PRS Legislative Research.
It further notes that the rules allow for the blocking of anything published online under emergency rules. The procedure lacks necessary safeguards, notes PRS.
It says, “As per the rules, the Secretary of the Ministry of Information and Broadcasting may pass an order for blocking the content of an online publisher in case of emergency...Such an order will be examined by the inter-departmental committee for its recommendation on the confirmation or revocation of the order. The rules do not give the publisher an opportunity for hearing during this entire process.”
With no hearing and the examination of the order by a bureaucratic set-up, it’s feared that press freedom concerns would not be a priority.
A major criticism of the Press Council of India (PCI) is that it has failed to stand up for press freedom and has failed to respond to threats made to journalists and their harassment. Not just that but it lacks authority to even police malpractices in the media.
There have also been allegations of politically motivated appointments to PCI acting in a partisan manner.
“PCI’s ability to take action against an erring newspaper or reporter concerned is limited and only extends up to warning, admonish and censuring. PCI more or less plays an advisory role. It is for the parties to adhere to it,” notes London-based lawyer Surabhi Kumari in an article in Bharati Law Review.
The Chairperson of PCI is nominated by a committee consisting of the Chairperson of Rajya Sabha and the Speaker of the Lok Sabha, and a member nominated by PCI members. This means that the ruling government would virtually appoint the Chairperson.
“So, the moot question involved in these incidents [of allegations or politically motivated PCI members] is whether the Chairman of Press Council of India a politically motivated post and whether there should be any check and balance on appointment of chairman and member of the press council of India,” notes Kumari.
As for reforms in the PCI, Kumari says the issue is that there is no penalising power with the body.
She tells Outlook, “There needs to be an amendment to the 1978 Act to include punitive damages at par with civil courts to make the Press Council more efficient. Further, the Press Council can be given more power to be on an equal footing with Bar Council or Medical Council and it can be given the power to admit persons as journalists on its roll, to maintain that roll, and to entertain and determine cases of misconduct against journalists on its roll.”
Kumari adds the Press Council could also be empowered to inspect journalism schools and mass communication institutes to “safeguard the standard of media”. She further said that the PCI’s ambit could also be expanded to include electronic media.
“We don’t reveal our sources,” say journalists often, but without any legal backing.
There exists no provision in India that allows a journalist to not reveal their sources. Multiple High Court verdicts have held that a journalist can be commanded to reveal their sources.
The Bombay High Court in the Javed Akhtar vs Lana Publishing Company ordered the disclosure of source of a magazine’s story. In another case, Jai Prakash Agarwal v Bishambar Dutt Sharma, the Delhi High Court ordered newspaper reporters to disclose their sources for a story. In a later case against The Hindustan Times, the Patna High Court ordered that it was within the capacity of the court to order disclosure of journalists’ source.
Two Law Commission reports have said that journalistic privileges, such as source confidentiality, should be codified into law.
“The 93rd and 185th reports of the Law Commission of India recommended that journalistic privilege, subject to reasonable restrictions, should be codified into law. However, that has still not seen the light of day,” says London-based lawyer Kumari.
The only protection related to sources that journalists have is in the proceedings of the Press Council.
Kumari tells Outlook,“Journalists are protected from revealing their sources in the proceedings before the Press Council of India under Section 15(2) of the governing act, unlike before civil courts where the court might ask journalists to reveal their sources as they deem fit.”
The poor implementation of the Right to Information (RTI) further affects the news gathering ability of journalists.
RTI has been used by journalists for a long time to access information and government data to report news, and it’s believed to be an integral part of investigative reporting, particularly to flag irregularities between government policy and actual practice on the ground.
However, the little accountability of public information officers (PIOs) and lack of enforcement of fines imposed on them puts journalists and general public at a disadvantaged position.
“Fines are imposed on officials when they don’t share information but there is little enforcement of that fine. Ideally, such fines should be automatically deducted from their salaries, but that does not happen,” says Kalpeshkumar L Gupta, Associate Professor of Law, Parul University, Gujarat.
Gupta shares data showing that fines worth Rs 3.12 crore were imposed on PIOs in financial year 2021-22 but only “a negligible amount” was recovered from them. He further shared that up to 3 lakh appeals against RTI applications rejected by PIOs were pending by June 2022.