In the recent past, India has witnessed a litany of violent protests that have caused a sizable amount of damage to public and private property. Tellingly, these protests have manifested the callous nature of protestors and the law enforcement officers governing them, and have subsequently thrown light on the lack of stringent laws that make it a strenuous task for the government officials to penalise the malefactors and claim damages from the same. The states of Karnataka and Uttar Pradesh underwent tumultuous agitations that led to a colossal damage to public property. Consequently, the respective state governments were under an obligation to act expeditiously and recover damages from the offenders. A recent investigation undertaken by the Indian Express shows the glaring misuse of authority on part of the State Government and how it had (mis)interpreted the age-old civil law principle of joint and several liability in the determination of damages and recovery of the money from the alleged culprits, thereby raising concerning questions on the adoption of due process. In this article, we analyse the constitutionality of the process or modus operandi adopted by the two governments to recover the damages and subsequently ascertain the pressing need for stricter and more comprehensive laws.Continue reading “Guest Post: Damage Recovery Mechanism in India and the due process of law”
“Democracy thrives on listening, arguing and even dissent.”– Pranab Mukherjee
The year had been exceptionally monumental for India owing to the widespread CAA- NRC protest, the migrant exodus, Indo- China clashes and the construction of the Ram Temple in Ayodhya. Towards the end of the year, India witnessed another historical event- the farmers protest, which has been called the largest protest in history. It is a multi faith, multi caste, multi-generational movement being led by more than one lakh farmers from Northern India.Continue reading “Guest Post: Article 19 and Farmers Protest”
[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog. This article is a part of series where the author analyses Article 19 vis-a-vis recent events.]
Introduction- What is a Media Trial?
In India, Media is regarded as the fourth pillar of democracy. The media provides the public with information by its reporting and commentary on the ongoing social and public events in the society. Media acts as a watchdog that helps create awareness and aids in formation of opinion for the laymen and helps in moulding their perception of an event. Media Trial means the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt irrespective of whatever is the verdict in the court of law. With the advent of technology in recent times, media’s presence has been ubiquitous. Media trials occur when the media houses start acting as “public courts” or “Janta Adalat” and start interfering with the proceedings of a case. Media may subtly or overtly give their verdict on a case, ignoring the crucial difference between an “accused” and a “convict” thereby disregarding the principle “innocent until proven guilty.”
Freedom of press and Indian Constitution
Freedom of press as a standalone right doesn’t exist under the Indian Constitution. However, it is implicit under Article 19 (1) (a) of the Indian Constitution which provides for freedom of speech and expression for all citizens of India. This fundamental right is enshrined in the Constitution to protect the democratic values of the country. Freedom of speech and expression freedom to express in oral or writing, one’s thoughts, opinions, ideas and beliefs. Freedom of press isn’t exclusively mentioned in the Constitution as it was made clear by Dr. B.R. Ambedkar during the Constituent Assembly debates that no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as their right of expression was concerned.
In the case of Romesh Thappar vs State of Madras, the Supreme Court held that freedom of speech and that of the press lay at the foundation of a democratic society, and without free political discussions, no public education is possible, which is important for the proper functioning of the government. It was observed by Justice Patanjali Sastri in the case that the freedom of speech and expression includes propagation of ideas, and that freedom was ensured by the freedom of circulation. The Supreme Court, through various cases has made it clear that right to speech and expression clearly includes the right to publish and circulate one’s ideas, beliefs and opinions through any mode of publication (it has been discussed on this blog extensively – check here).
In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar , the Supreme Court while deciding upon the scope of the freedom of press, recognized it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”.
Right to reputation and Media Trials
Freedom of speech isn’t a sacrosanct, absolute right and is subject to reasonable restrictions. These restrictions can be for varied reasons including the grounds of right to privacy, right to reputation, contempt of court etc. Every person has the fundamental right to reputation in the same manner as they have the right to freedom of speech. Article 21 of the Indian Constitution includes the right of a person to live with dignity which also comprises the right to reputation.
Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protect the right of reputation of an individual by stating that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 19 of ICCPR further emphasises this right by stating that everyone shall have the right to freedom of expression but it shall be subject to restrictions such as- respect for the right to reputation of someone. The UDHR is only a persuasive and not a legally binding instrument but India has ratified ICCPR and thus, is bound to follow the Covenant. However, no express and consequent legislation has been made in India with this regard.
Media derives its right of publication from Article 19 (1) (a) of the Indian Constitution but when a statement harms the reputation of a person it is said to be defamation. In India, defamation is considered both a civil wrong (tort) as well as a criminal wrong (Section 499 of the Indian Penal Code). Every criminal administration, across all democratic countries, also ensures that an accused is given a fair trial. Right to fair trial in a criminal prosecution is an implied right under Article 21 of the Indian Constitution – as a fundamental right. A media trial jeopardises that right to fair trial of the accused, forgoing the principle of natural justice as well as also violating their right to reputation.
In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, The Apex Court stated that, “―the impact of television and newspaper coverage on a person‘s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”
The justice delivery system in India being so excruciatingly slow, by the time the court pronounces a verdict, the media already disparages the image of not only the accused but also their family. There have been many instances where the media has passed its own verdict before the Court itself. In the infamous Jessica Lal case, when renowned lawyer Ram Jethmalani decided to appear on behalf of the accused his morality was questioned and one of the senior editors of a news channel branded him as trying to “defend the indefensible” thereby already declaring the accused guilty.
Media has increasingly become an important part of everyone’s lives. It acts as a watchdog that strives to keep the public informed, aware and vigilant. However, at times the media tries to sensationalize the news in order to grab the attention of the viewers. With the advent of 24 hour news coverage, media houses have delved into sensationalism rather than sensibility. After the augment of Television Rating Points (TRP), media houses try to attract a bigger audience and hence resort to whatever means through which they can achieve high ratings. This can lead to the media overstepping its limit and acting as a judicial institution of its own. It is difficult for the general public to not get swayed by an opinion or narrative that is being pushed relentlessly on them. Such extensive coverage may endanger the interests of the parties involved especially if a matter is sub judice.
Under the existing law of Contempt of Courts Act 1971, pre-trial proceedings are exempt from falling under the ambit of contempt. Publishing material with respect to the parties involved can affect their rights to a fair trial. Due to such lacuna, the press feels empowered to write and circulate excessive or at times, distorted facts.
The “Press Council of India” (PCI) which is a statutory body is concerned with developing and maintaining the standards of print media. The PCI has very limited powers under the Press Council of India Act 1978. The Act only refers to print media and hasn’t been updated to also include electronic media as well. Under the Act, the PCI can only “warn, admonish or censure the newspaper, the news agency, the editor or the journalist.” A mere warning is not enough to curb a media trial and the perils that arise because of it. The PCI should be given a stronger role to ensure that the media aren’t misusing their freedom of speech.
The trial by media has gained a renewed debate after the “Disha Ravi toolkit case.” The High Court of Delhi admonished certain Media houses to ensure that proper editorial control is exercised while disseminating information to ensure investigation is not hampered. The Media Houses were criticised for its sensationalized reporting. Similarly, after Bollywood actor Sushant Singh Rajput’s death, the accused Rhea Chakraborty had to file a plea against the unjust media trial meted towards her. Chakraborty filed an affidavit stating that ‘the constant sensationalization of the case’ had caused her ‘extreme trauma’ and an ‘infringement on her privacy.’
Thus, Media trial has become a serious issue in contemporary times. The dangers arising out of such misreporting should be addressed and if needed, the government should take concrete steps to prevent it from happening and impose penalties on media houses that partake in the same. The freedom of press is an inalienable right in a democracy but at the same time, this freedom also exposes its loopholes. Therefore, it is time that the government takes active steps in ensuring a more conscious, sensible and accountable journalism. More importantly, the media should be conscious enough to report neutrally and understand that they cannot over step their freedom of press.
Propagation of ideas and circulation of information is part and parcel of democracy and it is essential, as the Supreme Court held in Sakal Papers v. Union of India, for the “proper functioning of the processes of democracy”. In this article, the author will look into Article 19(1)(a) with respect to freedom of circulation and propagation of ideas as a Fundamental Right under the Indian Constitution. The availability of various ideas in the marketplace without any interference from the State strengthens the foundations of democracy. People can only have informed debates on the issue of “great importance” when the information is readily available through various portals to the public. With this context, the author will analyse two important judgments of the Supreme Court on this point of law.
Locating the Right to Freedom of Circulation and propagation of Ideas
In Sakal Papers case, the basic issue was constitutionality of Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page) Order, 1960. The objective of these laws was to “regulate the prices charged for newspapers in relation to their pages” which was ostensibly done to “prevent unfair competition” and give “fairer opportunities” to all the other newspapers. The petitioners contended that through these laws the selling price of their newspapers will increase for their readers, if they want to retain the same number of pages as they are currently distributing, which will lead to an adverse effect on their circulation. Otherwise, if not to increase the selling price, the newspapers will have to reduce the number of pages which will infringe their right to circulate and propagate ideas. The five-judges bench of the Supreme Court noted in Paragraph 26 that,
“26. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise as many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every newspaper was free to charge whatever price it chose, and thus had a right unhampered by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged.”
The Supreme Court explicitly held in 1950 in the case of Brij Bhushan v. The State of Delhi that there is no mention of freedom of press in the Constitution, but it falls within the ambit of Article 19(1)(a)—that is freedom of speech and expression. In the Sakal Papers case, the Supreme Court while focussing on this Right under the Indian Constitution, held that “The right to propagate one’s ideas is inherent in the conception of freedom of speech and expression.” Having said this, the Court then held two other important and allied rights, that are, the propagation of ideas can be done either by word of mouth or by writing and the volume of the content published. A citizen has a right to publish whatever she pleases (matter does not matter, unless it lies within the ambit of clause 2 of Article 19) and in any amount she pleases. Any restraint placed on these rights is a violation of Article 19(1)(a). The Order and the Act of the government was held unconstitutional by the Court as they infringe the press’ right to publish their ideas and the volume of the matter they are publishing. The court said in paragraph 27 that,
“It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspapers but for expressly cutting down the volume of circulation of some newspapers by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspapers.”
Furthermore, the Courts must ensure that the fundamental rights are not to be interpreted narrowly and they must not be “cut down by too astute or too restricted an approach” (see LIC v. Manubhai D Shah). In Manubhai D. Shah, the Court held that a citizen has a right to propagate an idea through “the print media or any other communication channel example the radio and the television”. Circulation of ideas is very important for a healthy democracy as it enables the citizens to gather information and build opinions. The Court held in paragraph 8 that, “freedom to air one’s views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.”
In Manubhai D. Shah, the Court while building upon the freedom to propagate ideas held that a citizen also has a right to reply/rebut to a criticism levelled against the view propagated by him. Hence, any restriction on speech and expression apart from Article 19(2) on a citizen’s right is a threat to democracy. Further, the restrictions must not be interpreted so widely that it infringes upon the citizens’ right and dilutes the whole purpose.
Authoritarian governments use various penal laws like the draconian UAPA, Sedition (Section 124A of the Indian Penal Code), National Security Act etc., to infringe citizens freedom of speech and expression under the garb of ‘reasonable restrictions. These penal laws have stringent punishments and bail conditions that are restrictive which impedes the courts from granting bail. Although the courts have championed civil liberties despite such stringent provisions for bail, the courts have looked into the accusations more diligently and judicially. The recent ‘toolkit’ incident is a classic example to portray the government’s use of sedition laws to shut dissent and deter informed citizens from critiquing government’s policy.
Read more on democratic backsliding in India here. Here, the author discussed why there must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny especially under the present government.