Introduction

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.

In a country like India, people are one of the major stakeholders. That’s why the access to information of public importance plays a significant role in increasing efficiency in the decision-making process and creating transparency in the work of the government or public department. Thus, the right to know is an indisputable part of the right to freedom of speech and expression and freedom of life and personal liberty. But by the misuse of the laws made for the protection of citizens this right to know cannot be subject to any obstruction. 

As Media House and Journalists are the information houses of the country, sourcing facts and situations to the general public along questioning the acts of government and public departments. But when these pieces of information are tried to be curbed by those in power, the judiciary becomes the last resort to survive justice. With this research, the plea filed in the Supreme Court for issuing special guidelines for filing FIR against such informants will be discussed in order to understand whether such guidelines should be issued and what would be the possible consequences of such special guidelines.  

Writ Petition 

Mr Ghanshyam Upadhyay, an advocate at Bombay High Court filed a writ petition before the Supreme Court of India under Article 32 of the Indian constitution against the Union of India, The Press Council of India, Republic T. V. &Zee Media Corporation Ltd. The writ is filed to protect the fundamental rights of press and media guaranteed under Article 19(1)(a) as the press / media is considered to be the 4th pillar of democracy. And it should be protected from frivolous FIR and malicious prosecution.

At present, there is no provision for the protection of freedom of press from frivolous FIR and malicious prosecution which results in fake cases filed against the journalists who provide complete, uncut, and truthful information to the citizens. These cases are filed with the motive of silencing the journalists. The writ further claims that the citizens also have fundamental right to know under Article 19(1)(a) which is violated when efforts are made to silence the voice of media / press. It is the duty of the media / press to inform the citizens about the corrupt and anti-national activities of the political parties and their supporters. 

The voice of the media / press must not be hushed because of animosity and malafide intention to prosecute as it questions the foundation of democracy. The free flow of information is the key to the survival of democracy. Freedom of media / press includes freedom of expression, opinion, idea, views and hence, should be free from interference. This freedom must be unrestricted so long as it does not violate other’s liberty. The editors of newspaper/news channels have the right to gather information, right to select the news for publication, right to print/telecast the selected news, and right to express their opinions on matters of public importance. Any interference with the same infringes the fundamental rights of media / press as well as citizens of the country.

The writ prays before the court to lay down guidelines to ensure that journalists can report, publish or telecast any news and FIR cannot be filed against them for the offences punishable under sections 295A, 153, 153A, 153 B, 298, 500, 504, 505(2), 506 (2) read with Section 120-B of I.P.C. and/or offences punishable under other similar enactments. FIR can be filed once it is sanctioned either by The Press Council of India or any statutory body constituted by SC for this purpose or any judicial magistrate having jurisdiction over the area. Such guidelines should be followed until a legislature is enacted in this regard. 

He highlighted the special guidelines issued for medical practitioners in order to emphasize that role and importance of media / press are no less important than that of medical practitioners and hence, similar protection should be given to media / press.

Analysis

Press and democracy are intertwined in such a manner that further would be recognized as an institutional limb of modern democracy.[1] The press plays a vital role in a democratic society where it acts as the voice of common people. But what happens when these voices are suppressed and laws become the tool for such suppression? FIR is there to provide protection to people and not to create obstruction or nuisance for the people. But filling FIR in several corners of the country to subdue the free flow of information by the journalist and the media houses is a nasty way to overlook the importance of the press.

As the Hon’ble Supreme Court in Indian Express Newspapers v Union of India emphasized on the importance of freedom of the press by stating that the word ‘expression’ under Article 19(1)(a) includes freedom from interference with the contents and circulation of a newspaper by the authorities in the name of public interest. As the whole purpose of the press is to uphold the publication of facts and opinions in lieu of public interest as it advances a democratic electorate to make a responsible decision. And it’s the primary duty of the courts to endorse the freedom of the press as it is the heart of social and political intercourse.   

So the freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions, and views with complete freedom and by resorting to any available means of publication, invariably subject to the restrictions imposed under Article 19(2).  

Hence, the Supreme Court should take into account the fact that the frivolous and unjust prosecution against the media houses and the press would amount to infringement of right of expression. Thus, appropriate measures are required to ensure freedom of the press. As such requirement was taken care of by this Hon’ble court in case Jacob Mathew v Union of India, to protect the medical practitioners against unjust and frivolous prosecution, as it is considered to a noble profession serving the human. And from this parallel can be drawn to sustain the importance of the press in public paradigm.

But as we know every coin has two sides. In the current scenario too, there are arguments from both sides. As discussed above, there are plenty of reasons which signify the need for the guidelines for the protection of media houses and journalists. On the other hand, this protection may be fatal for the foundation of democracy. Press / media is considered to be the 4th pillar of democracy and can easily be used for the spread of fake information. There can be very serious and dangerous consequences of fake news. The fake news can lead to bullying and violence against innocent people. A perfect example of this scenario is when a man attacked a pizza restaurant with an assault rifle in December 2016. It can harm the very foundation of democracy, consequently, it can lead to wrong decision making by the citizens of the country. The role of media and false information in the last American presidential election is undeniable. 

As discussed above, citizens of India have the right to know under Article 19(1)(a) which will be infringed if false information is furnished by media houses and journalists. Citizens have the right to know the true and uncut information about the events happening in the country. 

Conclusion

Living in a pluralist society like that of India, media / press holds an eminent position being the fourth pillar of the democracy and its significance can’t be denied or restricted. It is necessary to understand that the media / press is known as the fourth pillar because it has been an influential and trustworthy source of information. Since the free flow of information becomes an invariable part to help people in making rational decisions. These guidelines would have heavy reliance to ensure that the right of the people is protected. 

However, guidelines are needed so that there is a free flow of information but at the same time it must be made sure that these guidelines do not become a burden for the citizens of the country. So it can be structured in a manner that ensures that fake and frivolous news does not escape the boundaries of justice. Also, ensuring that any kind of misuse of these guidelines is not favored.  As with the environment of paid news, it becomes pertinent to make sure that these guidelines do not become a mere helping hand for this environment. Hence, the guidelines should not become a hurdle in the path of justice.


[1] Vide Author’s Commentary on the Constitution (6th edn, 1991), 95-97.


About the Authors –

Ayush Bagrodia [2018-23] is pursuing his UG Law from Maharashtra National Law University Mumbai and has a keen interest in Family Law. 

Monika Saini [2018-23] is pursuing her UG Law from Maharashtra National Law University Mumbai (Batch of 2018-23) and holds special interests in criminal & constitutional matters.


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