When Freedom of the Press is Stricken With the Coronavirus

When citizens are banished to the innards of their homes, it is all the more necessary to keep the government accountable by allowing journalists to go out there and ask inconvenient questions and flag uncomfortable issues.

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!” 

― Robert Bolt, A Man for All Seasons

William Roper was a member of the parliament of Westminster. He was married to Margaret, the daughter of Sir Thomas More. Sir Thomas was an English lawyer who served as chancellor to Henry VIII. His dogged opposition to Henry’s breakaway from the Catholic Church and refusal to take the Oath of Supremacy, that would amount to accepting the Tudor king as head of the Church of England, led to his conviction and execution for treason.  Bolt quotes him as saying, “I die the King’s good servant, but God’s First.”  Replace “God” with the ‘Constitution’ and you would have an ideal defender of the Rule of Law.

When the very existence and survival of a people are imperilled, it is understandable that passion for the Rule of the Law may be perceived as obstructionist, treasonous and even worse, moronic.  To this thought will be quoted the maxim Cessante Ratione Legis, Cessat Ipsa Lex – when the very reason for the law ceases, so does the law.  Did not Hobbes teach us that the state was born out of fear and the innate sense of self-preservation in man?  If man himself lost the battle for survival, what good would the state do for him?

Pushed against the wall, the constitutionalist would point out what Sir Thomas had said to his son-in-law. The ease with which our fear of the pandemic makes us willing to sacrifice our hard earned freedoms, including the freedom of the press – not so much as the right of journalists and newspaper companies to print, but the public’s right to know – is simply alarming.

Let us apply Thomas More’s test to take a careful look at the recent order of the Supreme Court in a public interest litigation ostensibly seeking relief for migrant workers stuck because of the lockdown.  The Parental Concern of the Court and its noble intentions are beyond question. These are unchartered waters and unfamiliar territories for all constitutional actors and we must indeed cut them some slack. While some may have had issues with the court’s good faith acceptance of the government’s assurance that it was up to speed in redressing the agony of the displaced labour, what did raise eyebrows was the court’s willingness, at the government’s nudging, to wade into the turbulent waters of press freedom and direct the media to be mindful of the state marrative. We shall explore the law on press regulation to understand whether the top court indeed was required to venture into this territory.

Freedom of the press and the constitution

Unlike the post apartheid progressive constitution of the Republic of South Africa, our constitution does not specifically list out “press freedom” as a fundamental right.  Our founding fathers, and a smattering of mothers, concluded that this would be addressed by the expansive ‘freedom of speech and expression’ which stood guaranteed as a fundamental right in Article 19 (1)(a). This right is not absolute; under Article 19 (2, the state can impose “reasonable restrictions” in the interests of sovereignty and integrity of India, 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 offence.

Over the years, courts have also evolved jurisprudence to read in the right of ‘Freedom of the Press’ into Article 19 (1) (a). In 1950, the Supreme Court in Romesh Thappar v. State of Madras observed that freedom of the press lay at the foundation of all democratic organisations, and held that a law could impose only those restrictions on the exercise of this right, which were allowed by Clause (2) of Article 19. Imposition of bans on circulation, pre-censorship and preventing publication of views, have been deprecated by the Court in several cases like Brij Bhushan and Virendra v State of Punjab.

In Sakal Papers v. Union of India, the challenge was to the regulation of the number of pages in a newspaper, number of supplements, and the size and area of advertisements. The government contended that this was commerce, and the right to trade, a separate fundamental right, could be restricted on grounds in Clause (6) of Article 19, that allow restrictions on the freedom of trade conferred by Art 19(1) (g). The court held that the dissemination of news and commercial activities of newspapers was entirely different, and dissemination of news and the right to freedom of speech and expression could not be taken away on any ground except those in Clause (2) of Article 19. The court further observed that the right to freedom of speech and expression included the right to publish and circulate one’s ideas, opinions and views with complete freedom, subject to reasonable restrictions.

In Bennett Coleman & Co. v. Union of India, the Times of India group complained against a newsprint quota and ingeniously argued that this commercial policy impacted upon press freedom as it limited news space.  The court agreed.  It held that the press had the right to free publication and circulation, and that the freedom of the press was both quantitative and qualitative.  In Indian Express Newspapers Pvt Ltd. v. Union of India, the court found a “press freedom” angle to even customs duty and auxiliary duty on newsprint. It held that levying tax on newspapers should not constitute an overburden nor should it single out the newspaper industry for harsh treatment.

In Secretary, Ministry of Information and Broadcasting, Govt of India and Ors v. Cricket Association of Bengal and Ors,  the apex court mined the “Right to Information” from out of the depths of Article 19.  This right was fleshed with the right to acquire information and to disseminate it. The court significantly held that the freedom of press included right to circulate, and to determine the volume of circulation. The court further held that right to communicate included the right to communicate through any media, whether print, electronic, or audio-visual.

The court in Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India held that freedom of press was not restricted to expression of thoughts and ideas which were “accepted” and “acceptable” but also to those which offended or shocked any section of the population. Freedom of speech and expression included the right to receive information and ideas of all kinds from different sources, and embodied the right to know. In Shreya Singhal v. Union of India, the court held that the content of the right under Article 19 (1) (a) would remain the same, no matter the mode of communication – thus illuminating the dark expanse of cyberspace with the constitutional glow of free speech.

The regulating law – Press Council of India Act

The regulator for the print media is the Press Council of India (PCI) set up by the Press Council of India Act, 1978. Section 13 (2) lays down the functions of the council, which include building up a code of conduct for the print media, ensuring maintenance of high standards of public taste, and growth of a sense of responsibility and public service. Under Section 14, if the council, either on a complaint or suo moto, has reason to believe that a newspaper or news agency has offended against the standards or journalistic ethics or public taste, or professional misconduct has been committed, it may hold an inquiry and warn, admonish or censure the offending party. It may even require any newspaper to publish any particulars relating to such an inquiry. Section 14 (4) stipulates that the decision of the council in such an inquiry would be final and not questioned in any court of law.

However, many have complained that this law has remained pretty toothless.  Also most chairmen, again post retirement placement points for justices, have remained content with the occasional press statement and slap on a truant wrist.  The irrepressible Justice Markandey Katju did add some colour to the office no doubt.  The recent suo moto action of the PCI against a Calcutta daily known to follow a fiercely independent stand for a satirical headline has again brought this institution into the limelight.

The PCI’s norms of journalistic conduct, 2019

The Press Council of India has also issued Norms of Journalistic Conduct from time to time. Principle 1 of the norms issued in 2019 requires the press to observe accuracy, and avoid the publication of inaccurate, baseless, graceless, misleading or distorted material. The press should report all sides of the core issue or subject, and not set forth unjustified rumours and surmises as facts.

Principle 8 requires the media to not pass on or elevate conjecture, speculation or comment as a statement of fact. Principle 12 states that the editor has the duty to see that on a controversial topic, all views are given equal prominence. Furthermore, if the veracity of any report or part of it is in doubt, it should be omitted. Principle 32 requires that newspapers, as a matter of self-regulation, exercise due restraint and caution in presenting any news, comment etc which is likely to jeopardise, endanger or harm the paramount interests of the state. Principle 41(iv) enjoins that the freedom of press involves the readers’ right to know all sides of an issue of public interest.  

For TV, the Cable Television Networks (Regulation Act), 1995

When parliament was legislating to regulate the press, the print media dominated.  The airwaves were national property and there was no need felt to regulate the state radio or infant state television broadcasts. In fact, every opposition party would consider them His Master’s Voice to the government of the day anyway.

The 1990s brought with it the cable television revolution with serials beamed into Indian homes from far way places such as Hong Kong. The law responded, and the Cable Television Networks (Regulation) Act, 1995, was enacted.

Section 5 of this Act stipulates that a programme cannot be transmitted unless it is in conformity with the prescribed ‘programme code’. Rules have been framed under this law and a programme code formulated. Rule 6 of the Cable Television Networks Rules, 1994, lays down the programme code and stipulates that no programme should be carried if any of the criteria are met, which include such a programme containing anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; being likely to encourage or incite violence or ifit contains anything against maintenance of law and order or which promote-anti-national attitudes;  contain anything affecting the integrity of the nation.

Furthermore, under Section 19, a cable operator may be prohibited from transmitting any programme or channel, if it is not in conformity with the prescribed programme code, or is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will or which is likely to disturb the public tranquility. Section 20 empowers the Central government to prohibit the operation of cable television network in any areas, where it is necessary or expedient to do so in public interest. The Central government may also regulate or prohibit the transmission or re-transmission of any channel or programme, if it is necessary or expedient to do so in the interest of the sovereignty, integrity or security of India, friendly relations of India with any foreign state, public order, decency or morality.

While this law does not provide for an independent regulator, as in the case of the print media, the private players have setup their own private regulators. The News Broadcasters Association has also framed a Code of Ethics and Broadcasting Standards to ensure impartiality and objectivity in reporting.

The government has not hesitated in using the vast powers under this law to enforce blackouts on truant channels. Recently, certain Malayalam channels bore the wrath, albeit briefly, for what the government concluded was objectionable reportage.

For digital news, the Information Technology Act, 2000

In addition to the media specific legislation, Section 69A of the Information Technology Act empowers the Central and state governments to direct any agency of the government or intermediary to block any information generated, transmitted, received, stored or hosted in any computer resource, if it is satisfied that it is necessary or expedient to do so in the interest of the sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign States, public order, or for preventing incitement to the commission of any cognisable offence provided for in the law.  

The media and the Disaster Management Act, 2005

Since we are concerned with regulation of the media during a pandemic, and the 21-day lockdown was imposed under the Disaster Management Act, 2005, it would be appropriate to refer to those provisions that concern this issue.

Section 51 of the law makes obstructing any officer or authority in the discharge of its functions under this law, or refusing to comply with any direction, an offence. Making a claim, knowing it to be false or having reason to believe it to be false, for obtaining any benefits has also been criminalised under Section 52. Similarly, making or circulating a false alarm or warning as to the disaster or its severity or magnitude, leading to panic, is an offence, and is punishable with imprisonment extending to one year or fine, under Section 54. Furthermore, under Section 67, directions may be given to any authority or person in control of any audio or audio-visual media or other means of communication to carry any warning or advisories regarding any threatening disaster situation or disaster, and the said means of communication and media as designated shall have to comply with such direction.

The media and the Indian Penal Code, 1860

Section 188 of the Indian Penal Code, makes disobeying any direction in an order promulgated by a public officer an offence, if such a disobedience causes or tends to cause obstruction, annoyance or injury, or any risk thereof to any persons lawfully employed. A higher punishment is provided if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray.

Section 269 states that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with up to six months’ imprisonment or with fine, or with both. Furthermore, Section 270 states that whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment extending to two years, or with fine, or with both.

Section 505 states that making, publishing or circulating any statement, rumour or report, with an intent to cause or which is likely to cause fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility, or with the intent to incite or which is likely to incite  any class or community of persons to commit any offence against any other class or community, will be punishable with imprisonment extending to 3 years or fine or both.

Prior restraint and pre-censorship

In 1988, the Supreme Court in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd held that any preventive injunction against the press must be “based on reasonable grounds for keeping the administration of justice unimpaired” and that, there must be reasonable ground to believe that the danger apprehended is real and imminent. The court in Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India applied the “real and substantial risk of prejudice” test to decide whether failure to injunct the publication would create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial.

Should Thomas More’s warning be heeded then?

Given the plethora of laws and the mesh of regulations that we have surveyed which equip the state to regulate the print and electronic media, in normal times as well as during emergencies such as the coronavirus pandemic, was it then really necessary for the top court to indulge a government with its observations on media reportage?

It will be argued that only the senseless and the sensationalist would object to a court in its Parens Patriae role handing out a pat of solidarity to a government weighed in by the unprecedented civilisational battle against the virus which has ravaged the world. It will be asked, was this not innocuous and harmless? After all, the court had also orally observed several feel good thoughts like encouraging bhajans, prayers and azaan to keep the morale of the migrant workers high?

Then it may be an appropriate time to dig out the voice of another justice during an emergency of another kind.  Penning his dissent at the cost of a chief justiceship, Justice H.R. Khanna wrote in 1975:

The greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law… Extraordinary powers are always assumed by the government in all countries in times of emergency because of the extraordinary nature of emergency. More is at stake in these cases than the liberty of a few individuals or the correct construction of wording of an order. What is at stake is the Rule of Law.” 

Let us not be unmindful of what impact the words of the highest court can have, the message it can send.  When it speaks the language of restraint, it only emboldens the hands of those who are allergic to liberty.  Within days of this hearing, a state government was registering criminal cases against those publications whose news reportage did not mirror the acceptable narrative.

In nations around the world battling this pandemic – and some with a death toll in the thousands – the judiciary has refrained from reading the riot act to the media and weighing in favour of carrying the state narrative. They are conscious that when citizens are banished to the innards of their house, it is all the more necessary to keep the government accountable by allowing journalists at great personal risk to go out there and ask the inconvenient questions and flag uncomfortable issues.

What better to guide the court than the words of someone who was a journalist as well as a lawyer, and a Father of the Nation to boot. While reminding us that “one of the objects of a newspaper is…to fearlessly expose popular defects”, Gandhi said “Freedom of the press is a precious privilege that no country can forgo.”  While we light our lamps to dispel the virus, let us not consign the Mahatma’s words to darkness.