Regulation of Media in India: Need of A Constructive Mechanism

Introduction

Debates on the freedom of speech and expression, extent of tolerance, and the limits to which media can regulate and be regulated, have been a matter of consideration and has raised several questions pertaining to regulation mechanism for Media in India. While a section of the society advocates free speech and opposes any restriction on speech and expression on media, the other section provides a contrary opinion in favouring exercising reasonable restrictions.[1] The right to Freedom of speech and expression is sacrosanct and imperative in a vibrant, sustainable democratic set-up[2], and free press acts as the necessary derivative of this freedom. Banning a news channel, NDTV, for the first time in India[3], was followed by a nationa-wide hue and cry and the event was construed as a direct attack to freedom of speech and expression. Needless to say, the country requires a well-defined regulatory and constructive mechanism for different types of media platforms, whether print or digital.

 

Constructive journalism has always played a crucial role to monitor government actions, curbing government excesses and criticising lacunas, thereby forcing the government to rectify their course of action. As a watchdog, it has ensured accountability, adherence to constitutional obligations and the doctrine of separation of powers and the rule of law.[4]

Classification of Media

Broadly, media can be classified into four categories:

1. Print Media, which includes Newspapers, Journals, Press Releases and Magazines
2. Electronic or Broadcast Media, which includes Television, Radio
3. Social Media, which is accessed through the Internet in the form of Facebook, Twitter, WhatsApp, Instagram etc.
4. OTT Platforms like Netflix, Hotstar, Amazon Prime, Voot, etc.

Exceptions: In the current scenario, the four platforms have started overlapping in the following manner;

• YouTube is used both as social media and Broadcast media.
• Newspapers and Journals have started distributing news online in the form of e-Papers.
• Sports matches and serials are also made available on OTT platforms like Hotstar and Zee5.

Media and Constitution of India

The Fundamental Right under Article 19(1)(a) enshrines the  ‘freedom of thought and expression’ which is available to all the citizens subject to certain reasonable restrictions. However, freedom of media has not been explicitly mentioned under this article. The intention of the Constitution makers behind the inclusion of this article can be interpreted to include the freedom of the press and media.

Legal Framework surrounding Media

The laws and regulations governing media and regulating its activities had been enacted during the British-era. With time, the old laws were either amended or taken down to make way for new laws better suited for modern requirements. The laws have been drafted in a way that they govern media, disallow misuse and protect the rights and freedoms of media persons/Journalists.

Some of the prominent laws enacted by the concerned authorities like Press Council of India, Ministry of Information and Broadcasting, Central Board of Film Certification, Telecom Regulatory Authority of India etc. are listed below:

1. First Press Regulations (1799)
2. Gagging Act (1857)
3. Vernacular Press Act (1878)
4. Press and Registration of Books Act (1867)
5. Sea Customs Act (1878)
6. Indian Press Act (1910)
7. Official Secrets Act (1923)
8. Cinematography Act (1952)
9. Delivery of Books and Newspapers Act (1954)
10. Drug and Magic Remedies (objectionable Advertisement) Act (1954)
11. Young Person’s (Harmful Publications) Act (1956)
12. Parliamentary Proceedings (protection of Publication) Act (1956)
13. Copyright Act (1957)
14. Defense of India Act (1962)
15. Press Council of India Act (1965)
16. Contempt of Court Act (1972)
17. Police (Incitement to Disaffection) Act (1972)
18. Prasar Bharati Act (1990)
19. Cable Television Regulation Act (1995)
20. Telecom Regulatory Authority of India (1997)
21. Right to Information Act (2005)
22. Sports Broadcasting Signal (mandatory sharing with Prasar Bharati) Act (2007)
23. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

The Multifarious Impact of Media: An Assessment of Pros and Cons

1) Media as a positive force:

In the initial decades post-Independence, media largely acted as a positive force. The media houses were administered by thorough nationalists for whom media houses were sacred temples. Hence, they respected the liberty and refrained from misusing the newfound platform.

In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India[5], the Supreme Court of India emphasised the importance of media in a democratic society by stating that “freedom of the press is the heart of the heart of social and political intercourse.” The press has become a public educator, making both formal and informal education accessible to mass, especially where modern sources of communication is still a far cry. It has played a crucial role in advancing the public interest by reporting facts and opinions, without which democracy cannot establish responsible judgments. [6]

Electronic Media has reached illiterate and the technologically disadvantaged sections of the society via audio-visuals and the use of social media which constantly distribute matters relevant to public importance. It has enabled socio-political and economic development and awareness among the population. Furthermore, people have also started recognising their rights and expressing their opinions on matters that affect them. In the cases of Jessica Lal and Nirbhaya[7], mass protests along with the media’s pressing intervention have helped to secure justice for the victims.

2.) Media as a negative force:

The Media has also invited criticisms largely due to irresponsible or biased reporting that wrongly influence public opinion. An inadequate regulatory framework has also encouraged negative facets of journalism.

“Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011)”[8]

In the present scenario, bad journalism is reflected in many areas such as like yellow journalism, paparazzi, Page 3 journalism, paid news, fake news, biased reporting and media trial, etc.[9] These, if allowed to go unchecked can snowball into a serious risk to human rights in the long-term. One of the most corrupt practices predominantly in India is the Media trial, which degrades the justice system and prematurely assasinates character. Few instances of both print and e-media, through which this can be witnessed are:

• Sankeraman Murder Case, wherein e-media stirred a protest against Sankracharya Jayendera Saraswati, as a consequence of which his image was tarnished by a prolonged media trial. When he was acquitted, the media did not bother to highlight the news.
• Aarushi Talwar Murder Case, wherein Media declared Aarushi’s Parents, Rajesh and Nupur Talwar as murderers. However, a CBI investigation revealed that the father was not the actual killer.
• NDTV menace: Purnoy Roy apologized for showing P.O.K as part of Pakistan[10] and the channel was also forced to apologize to BJP M.P. Mahesh Giri for showing a fake letter in his name.[11]

Wrong reporting and excessive scrutiny of common people involved in news and media trials, ruins their life and decimates their reputation- lives of their associates are also affected. The head of an NGO, who was a J.N.U scholar, was forced to commit suicide amidst a severe media trial for two days.[12]

Adversities of Unregulated Media vis-à-vis Fundamental Rights

Fundamental Rights:

“Power corrupts and absolute power corrupts absolutely.” – Lord Acton

Media, a powerhouse of influence, has the foremost obligation to refrain from acting in the detriment of society. However, in the failure to honour this obligation, larger interests are affected.

Media tends to abuse the Right to Freedom and Speech when it is unregulated and the content is not appropriately filtered. The Right to receive information also forms a part of the right to speech. However, as far as democratic values are concerned, these values can be preserved only if people are fed with correct information and nothing is misleading or inaccurate. In P. U. C. L. v. Union of India[13], SC held that right to get information is part of freedom of speech and expression and highlighted the importance of accuracy in information and facts.

Notably, freedom of speech and expression also enshrines within itself the right to have the exact broadcast of views. On the contrary, wrong or out of context views are aired, which is to be construed as a violation of freedom of speech and expression. The Right to life includes the right to dignity, which is severely undermined in case of media trials. Where right is life is supreme and not a subject to negotiation, dignity and honour of an individual of a person cannot be compromised upon. In D.C. Saxena (Dr) v. Hon’ble the Chief Justice of India[14], SC opined that it is the duty to not meddle with others rights and in any way denigrate them.[15]

The Right to privacy explicitly requires the press to respect personal and professional boundaries. However, this is seldom observed as most media houses are now habituated to intrude personal spaces of individuals to meet their own ends. It is to be noted that the defense of investigative journalism cannot be applicable in all instances. In Rtd. Justice K S Puttaswamy v. Union of India, SC opined that the right to privacy is a fundamental right and intrinsic under article 21.

2. Paid News:

According to the Press Council of India, Paid News can be referred to as “any news or analysis appearing in any media (print and electronic) for a price in cash or kind as a consideration”. It leads to misinformation and deception in minds of people, while affecting the true perception of a free mind.

3. Cross Media Ownership And Monopoly:

Monopolisation of Media ownership negatively impacts competition and the quality of media. This monopoly has remained unscrutinised by the public and is largely unregulated. However, the monopoly doctrine is not particularly applicable in India as the country has multiple large players in the media industry and there is perpetually stiff competition with regards to viewership.

Status-Quo of Regulatory Framework of Media

The regulatory structure of media in India is not unified.  It is under control by multiple regulatory bodies, which also makes the structure difficult to understand in light of jurisdiction. The enforcement of decisions by these authorities are also half-hearted and insincere. In Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, the Supreme Court recommended suggested an independent Broadcasting Media authority with TRAI. Further in Indraprastha People v. Union of India, the Delhi High Court suggested setting up an independent statutory body under the Cable Television Networks (Regulation) Act, “consisting of men and women of eminence.” [16]

The numerous examples of Abusive journalism call for a system where people’s rights are protected against the onslaught and intrusive nature of the media. The state must issue a minimal regulatory mechanism, to curb malpractices of media. In a culturally diverse country like India, it is the duty of the media to project truth and as well as refrain itself from misleading reporting and sensationalization of the story in order to increase viewership and T.R.P.

Lack of Implementation by controlling bodies

• The Electronic Media Monitoring Cell (Ministry of Broadcasting and Information) is extremely ineffective. The function of this cell is to monitor TV content and look into the violation of the Programme & Advertising Code under the Cable Television Networks (Regulation) Act, 1995. The provisions under Section 19 of this Act, authorises the government to ban a telecast or re-telecast of T.V. programs meant to spread hatred. Further, in Section 20 of the Cable T.V. Regulatory Act, a telecast can be subject to a ban on the grounds mentioned in article 19(2) of the constitution of India. However, the monitoring cell has not done any major work in this regard.
• The Self-Regulating Mechanism of media, ‘Indian Broadcasting Foundation’ issued guidelines for the reporters to follow. It has established a mechanism for redressal of public grievances against the media, but this body has proven to be a futile endeavour.

In addition to the above account, the 200th report of the Law Commission of India[17], drew out the following loopholes in media working, and these are especially biased against the right of a fair trial:

• Publications pertaining to the character of accused or previous conduct;
• Publication of Confessions;
• Publications criticizing or reflecting upon merits of that case
• Publication of Photographs which disturbs the identification procedure of accused
• Prejudicial behaviour against the accused
• Criticism and objectification of witnesses.
• Publications of interactions and interviews with witnesses along with excessive scrutiny.

Existing Regulations

1. Press Council of India (PCI): This body, established by the Press Council of India Act, 1978, regulates print media. The objective of this body is to improve and check the quality of newspapers and news agencies whilst protecting freedom of speech. The PCI has been empowered to take Suo motu cognizance against the newspapers or reporters in case of breach of norms and code of conduct. It may issue summons, take evidence from newspapers and journalists accused of violating norms of journalistic conduct. Furthermore, it may issue warnings or condemn the violator. However, the Council cannot penalize for violation of its guidelines.

2. Other self-regulatory bodies governing television telecast without government intervention are Cable Television Networks (Regulation) Act and the Telecom Regulatory Authority of India Act has drawn out Policy Guidelines. The Cable Television Networks (Regulation) Act has a programming and advertising code that prohibits broadcast that is inconsistent with the act. TRAI issues rules on streamlining distribution.

3. Ministry of Information & Broadcasting has established the Electronic Media Monitoring Centre (EMMC), which aims to monitor the content of Private FM Radio Channels and checks the violation of the Program and Advertisement Code by TV Channels.[18]

4. News channels are governed by a self-regulation body, the News Broadcasters Association (NBA), which is responsible for examining complaints on these platforms. NBA also regulates the TV broadcast by defining a code of ethics and can censure, criticise, penalise or warn in case of violation.

5. The Central Board of Film Certification (CBFC) regulates films. It is a statutory film certification body of the Ministry of IB with the responsibility to regulate the exhibition of films publicly in theatre. It grants rating certificates but cannot censor content under the Cinematography Act, 1952. 

Self-regulation mechanism in OTT Platforms

Self-regulation refers to the practice of establishing and abiding by one’s own standards or codes of behaviour without external checks. The supporting argument in favour of self-regulation is that it will enable the media to function independently and render sufficient balance between autonomy and accountability. Furthermore, since issues relating to jurisdiction are quite complex, self-regulation is a much better way to deal with the situations. Self-regulation is less expensive and facilitates much better professional standards and the development of a code of conduct of their own. Precisely, self-regulation is not a form of censorship or self-censorship, it is more of a minimal standard of ethics whilst protecting Article 19 (1)(a).

The Regulatory mechanism for digital news and OTT platforms has been established under Section 87 of the IT Act, 2000. It has three levels of regulation rules, which has been made as:

• Level 1 Regulation: Self-regulation by the Publishers themselves.
• Level 2 regulation: Self-regulation committee which will be headed by a retired judge of the SC or HC or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant fields and 6 members being experts from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant fields.
• Level 3 Regulation: Oversight committee will be established consisting of an interdepartmental committee which further consists of 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 Defense, and such other ministries and organizations including domain experts that it may decide to include in the committee.

Conclusion and Recommendation

Media ethics play an imperative role to shape the functioning of the fourth estate. The need of the hour is to assess current regulations and bring about effective reforms as and when necessary. All the loopholes and lost grounds can be addressed and reinstated by the establishment of a regulatory body for Media. The rules must be made in consultation with all the stakeholders along with subject matter experts. The following changes are recommended:

1. A well-structured regulatory body with sufficient autonomy can be formed. The PCI and NBA could be merged with the objective to regulate all the forms of media under a single umbrella.
2. The body must be helmed by a renowned and efficient media personality of unquestionable intergrity that knows the industry inside out.
3. It must establish a self-regulatory code and impose heavy penalties to deter unethical malpractices.
4. Funds must be allocated from the consolidated fund of India, via PCI to ensure that such a body is independent of undue influence or bias.

[1]Parth Sharma, A critical Evaluation of Media rules in India, CHRIST UNIVERSITY (Jan. 2017), http://archives.christuniversity.in/disk0/00/00/73/15/01/01_Title12.pdf.

[2] Vishal Sharma, Regulatory Mechanism for Electronic Media: Protecting freedom of Speech from the onslaught of uncontrolled Media, 2 ILI L.J. 17 (2018).

[3] Smriti Kak Ramachandran.2016.”NDTV India ban : First time a news channel barred over national security”. H. TIMES, Nov. 4, 2016.

[4] Sharma, supra note 1 at 1.

[5] Indian Express Newspaper v. Union of India, (1985) SCR (2) 287.

[6] Id. at 18.

[7] Lhendup Gyatso Bhutia, My Sister Jessica Got Justice Due to Media, DNA, Sep. 9, 2007.

[8] PIB, (Feb 25, 2021 2:44PM), https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749.

[9] Sharma, supra note 2, at 19.

[10] How a Social Media User Has Forced NDTV into Apologising for Their “Error”, OPINDIA.com, Oct. 16, 2016, http://www.opindia.com/2016/10/how-a-social-media-user-has-forced-ndtv-into-apologising-for-their-error/.

[11] Ayesha Singh, Exposed: NDTV Apologizes to BJP MP Mahesh Giri For Showing Wrong Letter, INSISTPOST, Jun.16, 2016, http://insistpost.com/12145/exposed-ndtv-apologizes-to-bjp-mp-mahesh-giri-for-showing-wrong-letter/.

[12] Caezar Mandal, Khurshid Anwer Suicide Case: Colleagues Say He Was Framed, T.O.I, Dec. 20, 2013.

[13] Writ Petitions (Civil) 490, 509 and 515 of 2012.

[14] (1996) 5 SCC 216.

[15] Id.

[16]Abhinav Dubey, Media law in India: The current challenges, 6 IJRAR, (2019) http://ijrar.com/upload_issue/ijrar_issue_20543374.pdf.

[17] Law Commission of India, 200th Report on Trial by Media: Free Speech and Fair Trial under Criminal Procedure Code, 1973 (August, 2006).

[18] Telecom Regulatory Authority of India, Recommendations on Issues Relating to Media Ownership (Aug. 12, 2014), http://www.trai.gov.in/WriteReadData/Recommendation/Documents/Recommendations%20on%20Media%20O wnership.pdf.

 

YLCC would like to thank Harshima Vijayvergia for her valuable insights in this article.