Role of media in democracy

MEDIA AND DEMOCRACY

The function of law must be to find out ways and means to restore public debate and free flow of information through the media. This may need restricting of monopoly trends in the media business and relevant laws to protect journalists, writes Dr. S. Sivakumar

Introduction

The role of the media is vital in generating a democratic culture that extends beyond the political system and becomes engrained in the public consciousness over time. It is through the media that people share their experience, learn and become aware. It is how a constructive political debate about options and policies develops. The media right is exercised in public and therefore has greater effect vis-à-vis what a person says privately. In order for the media to fulfill this function, it must guarantee its objectivity; the journalist should always be a neutral observer, unengaged with events but faithfully recording them.

Freedom of the media is indeed an integral part of the freedom of expression and essential requisite of a democratic set up.  The Indian Constitution has granted this freedom by way of Fundamental Right.  The media, which is obligated to respect the rights of individual, is also obligated to work within the framework of legal principles and statutes.  These principles/statutes have been framed by way of minimum standards and do not intend to detract from higher standards of protection to the freedom of expression.

Freedom of speech and expression is a natural right. The history of this freedom can probably traced from what John Milton urged, “Give me the liberty to know, to utter and argue freely according to conscience above all liberties.”1 Since then, the freedom of speech and expression has become a fundamental mantra to realize democratic aspirations. The first amendment in the Constitution of the United States of America was inserted to guarantee this right to its people. Suppression of public opinion during the colonial period influenced the founding fathers of the republic to introduce the ‘Bill of Rights in the form of first fourteen amendments. During 1948, in the background of the Holocaust, the United Nations adopted the Universal Declaration of Human Rights. Article 19 of the Declaration stated as:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

Almost all constitutions of democratic nations have given the prime place for the right to free speech. About two decades ago, while addressing the Newspaper Society, the doyen of the Indian legal profession Palkhivala observed: “Freedom is to the Press what oxygen is to the human being; it is the essential condition of its survival. To talk of a democracy without a free press is a contradiction in terms. A free press is not an optional extra in a democracy.” 2

The Indian Scenario

During colonial administration in India, dissent was never encouraged. When India attained independence, the framers of the Indian Constitution being aware of the significance of right to free speech, made it a fundamental one. The freedom of speech and expression, which includes freedom of media also, is the soul of democracy. The press per se is not given any special rights. Yet the press being considered the voice of the people enjoys the same rights as individual citizens. Consequently, healthy relationship between the media and the State is the desideratum for protecting human rights.  But there is an inherent problem, for ideas, beliefs and opinions when expressed may cause conflicts.3 To resolve such conflicts, the Constitution has provided for certain ‘reasonable restrictions’ in Article 19(2).4

Press enables the public to keep a constant vigil over the affairs of the State and ventilate their views for corrective action if anything goes wary. An accountable and transparent Government and well-informed people contribute to a successful democracy. Media has the role of educating people, guarding their freedom and watching over the Government, challenging it and forcing it into the open. Therefore, the media has a duty of more than watching the administration; it has a duty to educate the people. It also enables the citizenry to demand positive action on the part of Government to ameliorate the condition of the society in general and of the weaker section of the society in particular.

Judicial Approach to Free Press

In many cases, the Indian Supreme Court has reiterated the need to protect the fundamental right of freedom of speech and expression.  Since Romesh Thappar,5 there have been many cases6 involving the right to free speech. In R. Rajagopal Vs. Tamil Nadu,7 Justice Jeevan Reddy reiterated the indispensability of the freedom of press. In his lucid analysis, he points out the jurisprudential desideratum thus:

“But what is called for today, in the present times, is a proper balancing of the freedom of press and said laws consistent with the democratic way of life ordained by the Constitution. Over the last few decades, press and electronic media have emerged as major factors in our nation’s life. They are still expanding and in the process becoming more inquisitive. Our system of government demands as do the systems of government of the United States of America and United Kingdom-constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good Government.”6

There is need to discuss the privileges and specific rights granted by the State to the media persons and those enjoyed by the judiciary under the Constitution.  

Freedom of the media is indeed an integral part of the freedom of expression and essential requisite of a democratic set up.  The Indian Constitution has granted this freedom by way of Fundamental Right.  The media, which is obligated to respect the rights of individual, is also obligated to work within the framework of legal principles and statutes.  These principles/statutes have been framed by way of minimum standards and do not intend to detract from higher standards of protection to the freedom of expression.

The media is the Fourth limb of a democratic system, the legislature, executive and judiciary being the other three.  While legislature prepares the law for the society and the executive takes steps for implementing them, the third stepping-stone is the judiciary, which has to ensure legality of all actions and decisions.  The Fourth Estate i.e. the press has to operate within the framework of these statutes and constitutional provision to act in public and national interest.  This is indicative of the fact that nobody is above law.  When the Constitution of India guaranteed freedom of expression and speech to its citizens, it ensured that the freedom was not absolute and any expression, by way of words, speech or visual medium, did not violate any statutory provisions enacted by legislature and executed by the executive.  If the media, electronic or print, exceeded its jurisdiction, the courts came forward to ensure that violation of the Fundamental rights by the media does not go unchecked.

The Press Council of India was born out of the anxiety of our constitutional fathers to ensure that democracy can flourish only where its citizens enjoy full freedom of speech and expression subject only to reasonable restrictions. The press is rightly covered within the ambit of Article 19 (1) (a) even without an express mention. However, once the freedom struggle was over it was realized that a new kind of press was emerging in the post independence era whose aims and objects were undergoing fast change. The First Press Commission set up in 1954 examined the issue in depth and proposed the establishment of a Press Council as a peer body by regulate the conduct of their own brethren without any outside or governmental interference. Similar bodies were functional in several other democracies, but these were primarily voluntary organizations. In India, it was deemed more appropriate to give the Council the statutory backing affording due weightage of its adjudications and pronouncements. The Press Council of India has since functioned like a Court of Honor, guiding the print media along the path of ethical conduct and at the same time protecting it from any onslaught on its freedom.

The Press Council also functions as an advisory body to the government on matters affecting press freedom and has rendered valuable advice on several legislations. These cover the areas of libel, invasion of privacy, right to information, parliamentary privileges, Prevention of Terrorist Activities, Official Secrets, and many more. Lately, the Press Council had advised the Parliament on ‘Truth’ being accepted as a defence in contempt of court proceedings and the enactment incorporating these provisions in Contempt of Court Act has recently been passed.  

        

Similarly, the Council has drawn up a set of norms on media reporting on court proceedings.  It will be appropriate to refer to them in detail here.

"Caution in criticizing judicial act

i)        Excepting where the court sits ‘in-camera’ or directs otherwise, it is open to a newspaper to report pending judicial proceedings, in a fair, accurate and reasonable manner.  But it shall not publish anything : -

-         which, in its direct and immediate effect, creates a substantial risk of obstructing, impeding or prejudicing seriously the due administration of justice; or

-         is in the nature of a running commentary or debate, or records the paper’s own findings conjectures, reflection or comments on issues, sub juiced and which may amount to abrogation to the newspaper the functions of the court; or

-         regarding the personal character of the accused standing trial on a charge of committing a crime.

1. Newspaper shall not as a matter of caution, publish or comment on evidence collected as a result of investigative journalism, when, after the accused is arrested and charged, the court becomes seized of the case: Nor should they reveal, comment upon or evaluate a confession allegedly made by the accused.

iii)     While newspapers may, in the public interest, make reasonable criticism of a judicial act or the judgment of a court for public good; they shall not cast scurrilous aspersions on, or impute improper motives, or personal bias to the judge.  Nor shall they scandalize the court or the judiciary as a whole, or make personal allegations of lack of ability or integrity against a judge.

iv)     Newspaper shall, as a matter of caution, avoid unfair and unwarranted criticism which, by innuendo, attributes to a judge extraneous consideration for performing an act in due course of his/her judicial functions, even if such criticism does not strictly amount to criminal Contempt of Court.

b)      Reporting news pertaining to court proceedings

Before publishing a news item about court proceedings, it will be appropriate for the correspondent and editor to ascertain its genuineness and, correctness and authenticity from the records so that the concerned person can be held guilty and accountable for furnishing incorrect facts or wrong information about the court proceedings.

A lot remains to be done to ensure that two of the strongest pillars of our democracy i.e. the judiciary and the media work in tandem to promote the democratic secular principles enshrined in our constitution.

International Efforts

In 1994, a group of 39 distinguished legal experts and media representatives, convened by the International Commission of Jurists, its Centre for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, met for three days in Madrid, Spain.  The objectives of the meeting were   -

-        to examine the relationship between the media and judicial independence,

-        to formulate principles to help the media and the judiciary develop a relationship that serves both freedom of the expression and the judicial independence.

          The participants came from Brazil, Sri Lanka, United Kingdom, Sweden, Jordan, Australia, Ghana, France, India, Spain, Germany, Austria, Netherlands, Norway, Poland, Portugal, Switzerland, Senegal, Palestine, Bulgaria, Croatia, and Slovakia.

The following are the principles drawn up at the meet.

The Madrid Principles on the Relationship between the Media and Judicial Independence.

Freedom of the media, which is an integral part of freedom of expression, is essential in a democratic society.  It is the responsibility of judges to recognise and give effect to freedom of the media by applying a basic presumption in their favour and by permitting only

such restrictions on freedom of the media as are authorised by the International Covenant in Civil and Political Rights ("International Covenant") and are specified in precise laws.

The media have an obligation to respect the rights of individuals, protected by the International Covenant, and the independence of the judiciary.

These principles are drafted as minimum standards and may not be used to detract from existing higher standards of protection of the freedom of expression.

The Basic Principle

1. Freedom of expression (including freedom of the media) constitutes one of the essential foundations of every society which claims to be democratic.  It is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence.

2. This principle can only be departed from in the circumstances envisaged in the International Covenant in Civil and Political Rights, as interpreted by the 1984 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, (UN Document E/CN.4/1984/4).

3. The right to comment on the administration of justice shall not be subject to any special restrictions.

Scope of the Basic Principle

1. The basic principle does not exclude the preservation by law of secrecy during the investigation of crime even where investigation forms part of the judicial process.  Secrecy in such circumstances must be regarded as being mainly for the benefit of persons who are suspected or accused and to preserve the presumption of innocence.  It shall not restrict the right of any such person to communicate to the Press information about the investigation of the circumstances being investigated.

2. The basic principle does not exclude the holding in camera of proceedings intended to achieve conciliation or settlement of private cause.

3. The basic principle does not require a right to broadcast live or recorded court proceedings.  Where this is permitted, the basic principle shall remain applicable.

Restrictions

1. Any restriction of the basic principle must be strictly prescribed by law.  Where any such law confers a discretion or power, that discretion or power must be exercised only by a judge.

2. Where a judge has a power to restrict the basic principle and is contemplating the exercise of that power, the media (as well as any other person affected) shall have the right to be heard for the purpose of objecting to the exercise of that power and, if exercised, a right of appeal.

3. Laws may authorise restrictions of the basic principle to that extent necessary in a democratic society for the protection of the minors and of members of other groups in need of special protection.

10. Laws may restrict the basic principle in relation to criminal proceedings in the interest of the administration of justice to the extent necessary in a democratic society.

(a) for the prevention of serious prejudice to a defendant

(b) for the prevention of serious harm to or improper pressure     being placed upon a witness, a member of a jury, or a victim.

11. Where a restriction of the basic principle is sought on the ground of national security, this should not jeopardise the right of the parties, including the rights of the defence.  The defence and the

media shall have the right, to the greatest extent possible, to know the grounds on which the restriction is sought (subject, if necessary, to a duty of confidentiality if the restriction is imposed) and shall have the right to contest this restriction.

12. In civil proceedings, restrictions of the basic principle may be imposed if authorised by law to the extent necessary in a democratic society to prevent serious harm to the legitimate interest of a private party.

13. No restriction shall be imposed in any arbitrary or discriminatory manner.

1. No restriction shall be imposed except strictly to the minimum extent and for the minimum time necessary to achieve its purpose, and no restriction shall be imposed if a more limited restriction would be likely to achieve that purpose.  The burden of proof shall rest on the party requesting the restriction.

       Mr. F. S. Nariman, the noted jurist, had once observed, “A responsible Press is the handmaiden of effective judicial administration.  The Press does not simply publish information about cases and trials but, subjects the entire Justice – hierarchy (police, prosecutors, lawyers, Judges, Courts), as well as the judicial processes, to public scrutiny.  Free and robust reporting, criticism and debate contribute to public understanding of the rule of law, and to a better comprehension of the entire Justice – system.  It also

helps improve the quality of that system by subjecting it to the cleansing effect of exposure and public accountability.”

The need is that the courts be criticized but there is just as great a need that courts be allowed to do their duty fearlessly.

I would like to conclude by quoting Mahatama Gandhi: “one of the objects of a newspaper is to understand the popular feeling and give expression to it, another is to arouse among the people certain desirable sentiments, and the third is the fearlessness to expose popular defects.”  

I hope this seminar would discuss, in the above context, the recent activities of the media like the sting operations, invasion of the privacy of individual, trial by the media parallel to court trials and sensationalism and trivialization of news and information.  The question is not of the deficiency of law on media, but the observance and effective implementation of the existing laws. With the impact of globalisation, the scenario in media reporting has undergone and is still undergoing changes faster than anticipated. There is need for deep introspection by media person charged with avowed orientation for “Bahujan Hitayaa – Bahujana Sukhayaa cha”. Being watchdog of the society the media persons cannot afford to be oblivious even for a moment of its responsibilities and reasonable expectation of the society from them. Permit me to quote translated version from a poem of Viswakavi Rabindra Nath Thakur:

“Remain steadfast; Remain awake like a night candle,

In this hour of darkness, if you fall asleep;

There who need you help will go back disappointed