Role of the Media in a 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--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. The following information will outline the key requisites necessary for a robust and balanced media industry and highlight some of the issues that are facing working journalists today. 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 realise 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 Experience of democracies tells us that the freedom of press involves aspects of autonomy and public debate. Some writers stress the former aspect, i.e. freedom of the editor or publisher to publish his views without hindrance. Several others emphasise the latter aspect of public debate. According to these writers, autonomy may be protected only when it

enriches public debate; some of them even insist on State interference to protect public debate. 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 nations 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 With the advent of new technologies, electronic media has become both popular and hyperactive. Cyber world opens up to electronic journals and the digital press has become a popular channel for expression in the electronic age. However, the problem whether they truly represent the sentiments of people or whether they are only mouthpieces of some interest groups, remains tantalising. Sting operations by using electronic bugs while interviewing a person may be good in their attempts to bring out truth, but if the same is used for blackmailing a person, is not only illegal, but also immoral. Democracy may then denigrate into videocracy. But it is heartening to note that there are many websites devoted to bringing to light the incidents of human rights violations. Free Press From the point of view of Constitutional Law, there are three possible constitutional contexts in which a court is called upon to judge whether a particular exercise of freedom of speech is to be judicially protected. They are: 1) Where there is no written constitution, yet a host of statutes delimit the freedom. 2) Where reasonable restrictions are permitted to be imposed by the Constitution itself and the court is called upon to decide whether a particular restriction is reasonable or not. 3) The written Constitution guarantees freedom of expression without any limitation, but the court may impose restrictions. The first context is available in the United Kingdon (UK), where freedom of expression includes both the right to receive and express ideas and information and the secrecy of private communications.8 Moreover, UK being a signatory of the European Convention on Human Rights (ECHR), its citizens may seek the protection of this freedom by making an appeal to European Court of Human Rights.9 Subsequently, UK brought Human Rights Act 1998 in consonance with ECHR. This has helped the media there to publish material in the face of opposition. The Sunday Times wanted to publish information that originated from a former intelligence officer Richard Tomlinson. The paper argued that the material had been

published elsewhere and was therefore not confidential, but the Attorney General insisted they prove that the information was in public domain. The court of appeal agreed with the newspaper, holding that its application was in harmony with Article 10 of the European Convention and section 12 of the Human Rights Act (A-G Vs. Times Newspaper Ltd [2001] EWCA Civ 97, [2001] 1 WLR 885). 10 India is an example of the second situation, where a written Constitution guarantees freedom of speech, but with restrictions. Here also, much depends upon how the judges view the restriction. The third situation is available in the United States of America, where peace and moral standards of the society are the norms usually followed by courts. Obviously, judges have more leeway either in restricting the exercise of freedom or in upholding a moral standard, the limits of which they themselves have to set.11 In the context of judicial techniques in evaluating the restrictions imposed on the exercise of this freedom of speech, one may appreciate the relevant and effective role the judiciary plays in sustaining democracy in India. In such instances, judges may make their own doctrinal prescriptions. The jurisprudential rationale for restricting free speech have been identified and dealt with appropriately, as follows: i) Obscenity12 ii) Offending speech13 iii) Hate speech14 iv) Workplace harassment15 v) National security 16 etc. Under Article 19(2) of the Constitution, incitement to offence is one of the grounds for legislative interference with the freedom of speech and expression. Expression may incite readers or viewers to illegal action against the target selected by the speaker. In some other context, a particular expression may excite others to break order and cause breach of peace; the speaker may become the target of attack.19 The content of such offending expression may be obscene, hateful, or harassment. Thus, there is a close nexus among the concepts of obscenity, hate speech and harassment. Judiciary has an important role in deciding whether a particular speech is within a protected fundamental right or not, when such a speech is alleged to be violative of the accepted norms. In accepting constitutional provisions and related laws, judiciary comes forward with certain principles so that it can decide whether a particular speech is violative of any legal code or norms. One such principle is the fighting words doctrine. Fighting words, which may constitutionally be prohibited, are words directed to any person and have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. A precise assessment of fighting words cannot be made. For instance, the press has the duty not to misrepresent or distort or over emphasise certain speech/words out of the context, thereby creating a wrong impression in the minds of the readers who may think the speaker used an offending expression. If the editor does not discharge his duty faithfully, it means that he is committing two wrongs. First, he creates a wrong impression in the minds of the people about the speaker, thereby violating editorial ethics. Secondly, the editor makes the speaker violate the exception to free speech. Thus, it is not the speaker as such but the editor who becomes responsible for the fighting words. The term expression has two limbs. First comes the physical act of expressing. Use of public address system and electronic media come under this. A person may have a good idea that he wants to propagate, but he needs either a loudspeaker or any such means to reach his audience. Thus for an effective exercise of freedom of speech, one must also have the freedom to use an appropriate means of propagation; and without the latter the former becomes ineffectual. Tabloids, as against big newspapers run by corporations, and

websites have become effective vehicles in a democracy, as against media influenced or run by pressure groups of different hues. Press is a vehicle to carry speech to a larger audience. Often offending statements of leaders of political parties are carried in the newspapers. This happens especially during elections. The Supreme Court has issued directions to the Election Commission to frame guidelines to stop surrogate political advertisements in media. Second aspect of the term expression is the content. A ground upon which the matter is to be analysed is as follows: a speech might contain an expression which may or may not be offensive ordinarily, may become offensive in other situations where it has an emotional content. Such expressions are protected, provided they have little effect on persons hearing the same. In Kallara Sukumaran Vs. Union of India,17 a Minister in Kerala made a speech at his party convention. He was critical of the neglect of the development of the State by the Union Government and exhorted for a Punjab model agitation against Union Government. Taking into consideration the volatile situation in Punjab then, this phrase was regarded as something against the integration of India. Thus it became an offending speech. Media freedom has two dimensions: the absence of arbitrary power of interference and the ability to express oneself. But the unregulated freedom has its defects. Media could become selective in publishing news and views, for they might have their own interests to serve, especially when it is organised as a business. Monopolistic tendencies of the big business houses play a crucial role in the realm of press because of the very fact that press would help them in protecting their interests by distorting public opinion and/or creating an opinion favorable to them. Even the governments might try to influence press-people covertly by offering favours.18 Conclusion Though press enjoys the fundamental right of free speech on par with individual citizen, it is more powerful than that of ordinary citizens because it is organised. The press rightly enjoys the free speech right. But there are also certain negative aspects, which cannot be ignored. As it has already been pointed out, the press instead of being a noble profession is largely being considered a business. This commercialises the press. Some papers sometimes indulge in what is known as trial by press even before the alleged offenders are brought before the court. Sometimes some newspapers and photojournalists (popularly known as paparazzi) peep through the keyholes and invade the privacy, especially the privacy of celebrities. Such publications by the media lead to infringement of privacy and sensationalising of issues to increase the readership. This is not conducive to public interest. Though there is Press Council of India, which insists on a moral code of conduct for journalists, often commercialisation, politicisation and other selfish interests of individuals gain upper hand. What can be done in this context? 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. Law must also look into the problem of media violation of individuals rights. Apart from commercial interest, political power too vitiates the press. From the point of view of human rights, this is not a healthy trend. To quote Palkhivala: Openness is a concomitant of a free society. Men in power try to control and corrupt the press because they would not like anything to be known by the public which would detract from the respect, the acclaim and adulation to which they think they are entitled. This creates a conflict between rulers who are keepers of secrets and the press who are the tellers of tales. In the United States, where freedom of the press is much respected and considered almost sacred, erosion of the freedom was witnessed. On October 27, 2006 Tom Regan wrote:19

The news media advocacy organization Reporters Without Borders released their fifth annual World Wide Press Freedom Index this week, and it shows that the United States has dropped nine places since last year and is now ranked 53rd, alongside Botswana, Croatia and Tonga. The authors of the report say that the steady erosion of press freedom in countries like the US, France and Japan (two other countries that slipped significantly on the index) is very alarming. India comes far below in the index. From 80 in 2002 it came down to 120 in 2004. It is high time the Indian press introspected in this matter. Since the beginning of Iraq war in March 2003, more and more journalists have been imprisoned, attacked, kidnapped and killed throughout the world. In the words of Amnesty International: Across the world in a range of different situations, journalists are attacked, imprisoned and forced into self-censorship by repressive governments. The common element in all of these is the unwillingness of some governments to allow alternative voices to emerge and, in many cases, a fear that journalists will expose abuses they have tried to keep quiet. 20 Amnesty International continues: States have a duty to protect journalists and not to prosecute them in an effort to control the free flow of information. A free media is not only beneficial but necessary in a free society When faced with unjust restrictions and the threat of attack, self-censorship in the media can have the opposite effect, aiding the covering up of abuses and fostering frustration in marginalized communities. 21 If press freedom is attacked, it will result in the jeopardising of human rights because press reports human rights violations of authorities and powerful sections of the society. Free press does not mean that the State shall not intervene in its functioning; it shall intervene when the situation warrants. This intervention should only be in the interest of the public at large. But in the name of legal intervention, the State shall not impede the free flow of information that will go a long way in protecting and promoting human rights. But unfortunately, often suppression born from intolerance replaces healthy intervention. What is the result then? It amounts to suppressing the voice of the people.22 If it continues, democracy would become meaningless.
1. John Milton, Areopagitica (1644). 2 See, Nani. A. Phalkhivala, We the Nation-the LostDecade (1994) p.291. From the speech he delivered at The Golden Jubilee Valedictory Function of the Indian Newspaper Society, Delhi, September 29, 1989 3 See, Julius Stone Social Dimensions of Law and Justice (1966) pp. 226-7 4 Article 19 (2) read thus: Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. 5 Romesh Thapper Vs. State of Madras, AIR 1950 SC 124, 128 6 Brij Bhushan Vs. State AIR 1950 SC 129, Express Newspapers (P) Ltd Vs. Union of India AIR 1958 SC 578, Sakal Papers (P) Ltd Vs. Union of India Air 1962 SC 305 7 AIR 1995 SC 264 8 Halsburys Laws of England (4th Edition) Vol. VIII Para 834 9 See, Law and Parliament (Ed: Dawn Oliver and Gavin Drewry 1998) The Strasbourg Court will hear appeals from petitioners who lose their cases about human rights violations in the United Kingdom courts. P.177

10 See, Tom Welsh, Walter Greenwood and David Banks, McNaes Essential Law for Journalists (18th Edition 2005) p.292 11 The scope of US press freedom has been determined principally by court decisions interpreting the nuances of the First Amendment. In general, the US courts have held that the press has a watch dog role over government and is not subject to prior restraint or registration. On the other hand, defamation, obscenity and publication of national security secrets have been generally determined not eligible for protection under the First Amendment. See http://krakow.usconsulate.gov/media_press.html accessed on 19th March 2007 12 K.A.Abbas Vs. Union of India (1970) 2 SCC 780 13 Chaplinsky Vs. New Hampshire 315 US 568, 572 and K.C.Chandy Vs .R. Balakrishna Pillai AIR 1986 Ker.11 14 R A V Vs. City of St. Paul 505 US 377 (1992) 15 Vishaka Vs. Rajasthan (1997) 6 SCC 241 16 The National Security Act, 1980 17 K.C.Chandy Vs .R. Balakrishna Pillai AIR 1986 Ker.11. 18 See Press Council of Indias report on favours to journalists. The report in its introductory paragraphs observes: The Press Council of India has held the government accommodation concessional land, free air tickets and company shares being given to journalists, new agencies and newspaper establishments and owners, are undue favours The Report has made detailed account of how the government influences the Press. http://www.nwmindia.org/Law/Bare_acts/press_council_guidelines.htm accessed on 3/26/2007 20 http://web.amnsty.org/web.nsf/ accessed on 19th March 2007 21 ibid 22 In this year (2007) itself the Press Freedom Barometer si gnals the danger. Throughout the world 16 Journalists killed, 5 Media assistants killed, 136 journalists imprisoned, 4 Media assistants imprisoned and 60 Cyber dissidents imprisoned. See, http://www.rsf.org/rubrique.php3?id_rubrique=20 accessed on 6/23/2007