CHAPTER-vii

CONCLUSION
A ND
SUGGESTIONS
Chapter-VII : CONCLUSION AND SUGGESTIONS

7.1 Conclusion,

7.2 Suggestions

“The only security of all is in the free press. The force of public opinion
cannot be resisted when permitted freely to be expressed. The agitation
it produces must be submitted to. It is necessary, to keep the waters
pure.” – Thomas Jefferson.
The freedom of speech and expression has been characterized as “the very life of
civil liberty” in the Constituent Assembly Debates.1 The freedom of the press, while not
recognized as a separate freedom under Fundamental Rights, is folded into the freedom of
speech and expression.2The Supreme Court has described this freedom as the “ark of the
Covenant of Democracy”.3The freedom of the press serves the larger purpose of the right
of the people to be informed of a broad spectrum of facts, views and opinions. It is the
medium through which people gain access to new information and ideas, an essential
component of a functioning democracy. Thus, “the survival and flowering of Indian
democracy owes a great deal to the freedom and vigour of our press.”4 The Media is vital
in the role it plays in uncovering the truth and rousing public opinion, especially in the
face of wrongdoing and corruption. Numerous examples exist where the media has played
a central role in revealing corrupt practices and shaping the demand for accountability and
good governance. In India today, we have every reason to celebrate our news media.
However, as society evolves, new challenges are constantly thrown up that require
consideration. The Information Technology have expanded horizons, but also brought
with it new challenges, recent events related to the news media, such as the proliferation
and subsequent curbing of social media, the paid news phenomenon, fake sting operations,
trial by media, breach of privacy, etc. The most suitable way to regulate the media will be

1
Constituent Assembly Debates: Official Report, (Delhi, 1946-1950), VII, p. 18.
2
BrijBhushan and Another vs. The State of Delhi, AIR 1950 SC 129; Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC.
3
Bennett Coleman & Co. v Union Of India, AIR 1973 SC 106.
4
Amartya Sen, “The glory and the blemishes of the Indian news media”, The Hindu, April 25, 2012

328
to exercise the contempt jurisdiction of the Court to punish those who violate the basic
code of conduct. The use of contempt powers against the media channels and newspapers
by Courts have been approved by the Supreme Court in a number of cases as has been
pointed out earlier. The media cannot be allowed freedom of speech and expression to an
extent as to prejudice the trial itself. . An ideal proposal will be that the Indian press and
the Indian people are not at present democratic enough to allow the press to intrude in the
judicial process. What will an ideal proposition is to not allowing the media trial at this
moment. It’s definitely an ideal proposition to allow controlled media reporting of the
cases once the media is supposed to come out of the profit and sensational considerations.
The media has to play the role of a facilitator rather than tilting the scales in favour of one
or the other party.

Trial by Media and Rights of the Accused

It needs to be careful and cautious in its conduct. The solution lies not in the curbing
of media freedom altogether but in making efforts to make it more responsible. No
person charged of a n y crime should be judged by the media because that person is
innocent until proven guilty, and it one the basic premise of criminal jurisprudence. The
International Covenant on Civil and Political Rights, 1966 (ICCPR) was ratified by
India in 1976 and it states in Article 14(2) that “Article 14(2): Everyone charged with a
criminal offence shall have the right to be presumed innocent until proved guilty
according to law.”

And, no one, and this includes also the media, should be allowed to temper with the
functioning of law. The rule of law as well as the role of law demands a fair trail of any
person who comes to the portal of justice seeking justice. To use the words of Ronald
Dworkin, it matter how judges decide cases. And, talking in terms of the reality as it
exist in society, and as has been documented herein before, there is every possibility that
media by creating a ‘pressure condition’ may fetter the judicial process. Today, when we
are going through one of the crucial period of history which is taking a new turn thanks
to the transition that is sweeping the society world over, it requires to be cautious and
adopt a cogent approach that does not deny a person what is due to him, that is, a fair trial.
Besides, people at large should not be misguided, advertantly or inadvertently as that
may prove to be fatal for the human existence. In a time, when the life is faced with

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 challenges never seen before, the media needs to be aware of the consequences that may
arise because of its irresponsible way of functioning.

Media which decries others for violating people’s right cannot itself continue to do so
howsoever its intentions are noble. And, if it does so, it loses its moral ground to
condemn others. It will be better if it continues to stick to its primary work of making
people aware of what is happening around in world, and in doing so it may also acting
cautiously acquaint people with views that are germane in a particular context . But it
does not mean ‘polluting’ people’s conscience and consideration. It is pertinent to refer
to the observation of Law Commission of India5 which observed that:6

“If excessive publicity in the media about a suspect or an accused

before trial prejudices a fair trial or results in characterizing him as a
person who had indeed committed the crime, it amounts to undue
interference with the “administration of justice”, calling for proceedings
for contempt of Court against the media. Other issues about the privacy
rights of individuals or defendants may also arise.”

Today, there is greater need to devise a delicate and due balance between freedom of
speech and expression of the media on the one hand and the due process rights of the
suspect and accused. The golden triangle of Indian Constitution, comprising of Articles14,
19 and 21, assumes a great importance in this respect. Somehow, media trail presents the
7
curios case of conflicting rights. William Blackstone rightly observed:

The liberty of the Press is indeed essential to the nature of a free State;
but this consists in laying no previous restraints upon publication, and notin
freedom from censure for criminal matter when published. Every free man
has an undoubted right to lay what sentiments he pleases before the public;
to forbid this, is to destroy the freedom of the Press; but if he publishes
what is improper, mischievous or illegal, he must take the
consequences of his own temerity.”

5
The Commission has suggested that the starting point of a criminal case should be from the time of arrest of an accused and not
from the time of filing of the charge sheet. In the perception of the Commission such an amendment would prevent the media
from prejudging or prejudicing the case. Another controversial recommendation suggested was to empower the High Court to
direct a print or an electronic media to postpone publication or telecast pertaining to a criminal case and to restrain the media from
resorting to such publication or telecast. The 17th Law Commission has made recommendations to the Centre to enact a law to
prevent the media from reporting anything prejudicial to the rights of the accused in criminal cases from the time of arrest, during
investigation and trial.
6
200TH Report of Law Commission of India
7
William Blackstone, 4th Book of Commentaries, 1769, p 145

330
 There is a widespread view that the difference between an accused and a convict
and the basic underlying principle of ‘innocent until proven guilty’ are regularly
overlooked by sections of the media in its coverage of ongoing trials. By conducting
parallel trials, the media, it is felt, not only puts undue pressure on the judge but also
creates pressure on lawyers to not take up cases of accused. Further once a matter
comes under intense media glare, there is an added pressure on the prosecution to
secure evidence which must incriminate an accused, lest the media build negative
public opinion against the prosecution. A fair trial and investigation, which are
foremost Constitution al guarantees, are as much a right of the accused as they are of
the victim.
The exponential growth and reach of media has shown unhealthy trends of
competition, leading to sensationalized reporting giving the well-established rule of
sub-judice a go-by. While this is certainly not true across the board to all media
publications, the problem is certainly extensive. Some form of restriction on such
media trials has been suggested so as to preserve the administration of justice as also
to protect privacy of individual.

In response, the Supreme Court in Sahara India Real Estate Corporation v.

Securities and Exchange Board of India8 gave judges the power to order
postponement of publication on a case-by-case basis, the test being, ‘where there is a
real and substantial risk of prejudice to fairness of the trial or to proper administration
of justice’. However, this is a very general test which does not clarify what
publications would fall within this category, leaving it entirely contingent on the
content and context of the offending publication. This leaves the higher judiciary with
wide discretionary powers to decide what amounts to legitimate restraints on media
reporting. Due to the possibility of such subjective interpretation, postponement
orders could be used by influential parties as a tool to abuse the process of law.
Therefore, the jurisprudence of postponement might be transported into defamations
suits, when the application of such order should be sought strictly as a Constitution al
remedy.

Today trial has shifted from Courtroom to living room. And the result of such a shift
is that rights of people stand to be affected in a manner that has not been seen ever before.
Media today is commercialized and globalised. Their primary aim is to increase their
8
(2012) 10 SCC 603.

331
 profit / TRP ratings. One cannot imagine social responsibility on the contemporary
commercialized media. Their primary aim is profit. However, as everything comes for a
cost in today’s modern world, the profit making too has some cost. And the cost is
human rights of the accused.

The role played by media has led to the victimization of innocent people and violation
of their fundamental human rights. The accused is held guilty even before the beginning
of the trail. For instance, the recent controversies arisen after the Jamia Encounter9
has raised many questions regarding the role of the media in such cases. Such
irresponsible way of functioning is a flagrant violation of the ethical principles that form
the bedrock of a civil society. This is reflected in the Arushi Murder Case where the
accused has been socially stigmatised even the case is under consideration before the trial
Court. It exemplifies the intrusion by the media into the functioning of agencies of
Criminal Justice System. A ‘media trial’ ensued Afzal’s arrest. A week after the attack
on Indian Parliament, in a press conference called by the police, Afzal ‘incriminated
himself’ in front of the media which media played negative role in influencing the
conscience of general public before Afzal was even tried. Similarly, S.A.R. Geelani, one
of Afzal’s co-defendants in the Parliament Attack Case, was initially sentenced to death
for his alleged involvement notwithstanding the stunning paucity of evidence. He was
presented before the public as a dangerous terrorist. The Delhi High Court while
overturning Geelani’s conviction described the prosecution’s case as “at best, absurd
and tragic”. The media as a conclusive determination of the accused’s guilt represents
confession by the accused, even made to the police. This shows the ignorance of media
about the basic principles of law. Sec. 25 of the Indian Evidence Act, 1872 categorically
prohibits the confession to the police as admissible in law. Thus, something, which is
inadmissible in law, becomes sufficient to taint the accused with guilt in the eyes of
ordinary people. It is difficult to find a single news channel explaining the rationale
behind such inadmissibility or even a mention about the section in their reports. It is
germane here to refer to the concern of the Law commission of India which said:

“The media also creates other problems for witnesses. If the identity of witnesses is
published, there is danger of the witnesses coming under pressure both from the accused
or his associates as well as from the police. At the earliest stage, the witnesses want to

9
This was one of the most highlighted cases in recent past and generated invigorated debate. It was highly. It was fervently debated in
the media- both print and electronic

332
 Retract and get out of the muddle. Witness protection is then a serious casualty. This
leads to the question about the admissibility of hostile witness evidence and whether the
law should be amended to prevent witnesses changing their statements. Again, if the
suspect’s pictures are shown in the media, problems can arise during ‘identification
parades’ conducted under the Code of Criminal Procedure for identifying the accused.”
Questions seem to rise also on the fairness of such trials by media.

Being a part of the civil society media has a constructive role to play to see that their
irresponsible way of functioning does not result in the violation of the rights of the
people, which are succinctly referred to as ‘Human Rights’. Judge Cobb observes:10

“Liberty includes the right to live as one will, so long as that will do not
interfere with the rights of another or of the public. One may desire to live a
life of seclusion; another may desire to live a life of publicity; still another
may desire to live a life of privacy as to certain matters and publicity as to
others.... Each is entitled to a liberty or choice as to his manner of life, and
neither an individual nor the public has a right to arbitrarily take away
from him his liberty.”

Lastly, one of the much debated issues has been the influence of the
media on the decision making process of the judges. Sensationalized
journalism has also had an impact on the judiciary. For example, in upholding
the imposition of the death penalty on Mohammed Afzal for the December
2001 attack on the Indian Parliament, Justice P. Venkatarama Reddi stated,
“the incident, which resulted in heavy casualties, had shaken the entire nation
and the collective conscience of the society will only be satisfied if the capital
11
punishment is awarded to the offender.” The Supreme Court has held that a
trial by press, electronic media or by way of a public agitation is the very anti-
thesis of rule of law and can lead to miscarriage of justice. A Judge is to guard
himself against such pressure.12

However, this fact needs to be balanced with the fact that people also have the Right to
Information. And media plays a vital role in the dissemination of the information. What

10
Pavesich v. New England Life Ins. Co., 50 S.E. 70 (Ga. 1905).
11
See: http://www.hrdc.net/sahrdc/
12
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.

333
need to be seen is that the information must not be misinformation. As Prof. Upendra
Baxi once aptly remarked that ‘I have a basic human right that my mind should not be
treated as a dustbin where gossips or misinformation of people can be thrown.’ Thus,
media needs to be properly trained in the legal notices and legal knowledge. This point has

also been recommended in the 200th report of the Law Commission of India, which
observed that:13

“… Journalists need to be trained in certain aspects of law relating to

freedom of speech in Art. 9(1)(a) and the restrictions which are permissible
under Art. 19(2) of the Constitution, human rights, law of defamation and
contempt. We have also suggested that these subjects be included in the
syllabus for journalism and special diploma or degree courses on journalism
and law be started,,

The commission further observed that:14 The subject of ‘Trial by Media’ is discussed
by civil rights activists, Constitution al lawyers, judges and academics almost every
day in recent times. With the coming into being of the television and cable-channels,
the amount of publicity which any crime or suspect or accused gets in the media has
reached alarming proportions. Innocents may be condemned for no reason or those
who are guilty may not get a fair trial or may get a higher sentence after trial than
they deserved. There appears to be very little restraint in the media in so far as the
administration of criminal justice is concerned.’’

Defamation
The issue of defamation vis-à-vis the news media requires careful consideration. On
the one hand, instances of fake sting operations or trial by media give credence to
allegations of irresponsible journalism. On the other, threats of legal action with
punitive damages under the laws of defamation lead to a ‘chilling effect’ on the
publication of free and independent news articles and puts undue pressure on
journalists and publishing houses. Any change to the laws on defamation in India
must balance these two considerations.

13
Law Commission of India, 200th Report on Trial by Media, Free Speech and Fair Trial underCr.P.C,1973(August
2006) at p.8.
14
Id at 11

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Currently, civil defamation is dealt with under the law of torts whereas criminal
defamation is an offence under Section 499 of the Indian Penal Code. A journalist has
no special status under defamation laws in India. Although the press enjoys the
freedom of speech and expression under Art. 19(1)(a) of the Constitution , defamation
is a ground for a reasonable restriction to this freedom under Art. 19(2).
The Demands have been made in the past by entities such
as the Editors’ Guild of India, to decriminalize defamation as it pertains to
journalists. The proposal has been noted by the Law Ministry as well. In 2003, the
newspaper The Hindu mounted an unsuccessful challenge in the Supreme Court
against the use of the criminal code for defamation, on the ground that it violates the
press freedom guaranteed by the Constitution. Therefore, a comprehensive review of
laws regulating the media must consider the question of defamation laws as well.

Publications and Contempt of Court

With the rise of public interest litigation and a more activist
judiciary, Courts have been regularly thrust into the limelight in recent years, often
provoking confrontations with the media that result in contempt proceedings. The
rationale of contempt proceedings is to prevent erosion of public confidence in the
administration of justice.
The law of contempt is one of the grounds for
reasonable restrictions under Article 19(2) to the freedom of speech and expression.
While civil contempt refers to the willful disobedience to any judgment, or order of
a Court, criminal contempt is an offence under Section 2(c) of the Contempt of
Courts Act, 1971, and is punishable by imprisonment of up to six months. It is
defined as the publication of any matter which lowers the authority of any Court, or
scandalizes or tends to scandalize, prejudices or tends to prejudice, or obstructs or
tends to obstruct any judicial proceedings, or the administration of justice. It is
evident that this definition is extremely wide, particularly as it is unclear what the
words “tends to” encompasses.
In India, the Courts have generally not distinguished between scandalizing
the judge as a person, and scandalizing the Court. Other countries have progressed to
a more liberal regime. In UK, scandalizing the Court has ceased to be an offence, a
change brought in by the Crime and Courts Act 2013.In the USA, the offence of

335
 scandalizing the Court is unknown and Courts initiate action for contempt only when
they determine that there is 'clear and present danger' to the administration of justice.
There have been repeated calls for reform of contempt of Court
laws. The NCRWC recommended in 2002 that Article 19(2) be amended to provide
for the justification of truth and public interest in matters of contempt. In 2006,
Parliament amended the Contempt of Courts Act to introduce Section 13(b), which
permitted justification by truth as a valid defense if the same is in public interest and
made bona fide. Nevertheless, the manner of application of this defense in the
Courts has been inconsistent, and a Constitution al amendment has not been
introduced. Hence, there is a need to revisit the law on contempt and consider the
need for further amendments.

A brief overview of the existing legal framework governing the media is

essential before attention is turned to methods of regulation. There are distinct
systems of regulation for broadcast media, print media and social media.
At present, the law applicable to broadcast media is the Cable TV Networks
(Regulation) Act 1995. The Act brought into force the Programme Code and the
Advertising Code, which prohibit transmission of any programme or advertisement
not in compliance with the code. There is no regulatory authority set up under the
Act.
Instead, the broadcasting sector is regulated by the TRAI15, which notifies rules
from time to time on matters such as streamlining of the distribution of television
channels to platform operators. Additionally, the Electronic Media Monitoring
Centre established by the Ministry of Information & Broadcasting monitors the
content of all TV channels up linking and down linking in India to check the
violation of the Programme and Advertisement Code. It also monitors content of
Private FM Radio Channels.
Guidelines and regulations are issued from time to time by these regulatory
authorities. The Ministry of Information & Broadcasting, for example has issued
Policy Guidelines for Uplinking of Television Channels from India, the latest in
2011, which include mandatory compliance of the Cable TV Networks (Regulation)
Act 1995. The Guidelines introduce the three-strike and five-strike rules, whereby

15
Telecom Regulatory Authority of India

336
permission to broadcast, and renewal of such permission, is revoked upon three or
five violations of the Guidelines respectively.
Self-regulation of content in the broadcast media is conducted through a two-
tier mechanism of self-regulation by individual broadcasters as well as industry level
regulatory bodies. Regulation of content is divided into news and non-news sectors.
For the non-news sector, industry level regulation is enforced by the Broadcasting
Content Complaints Council (BCCC) within the Indian Broadcasting Foundation
(IBF) that oversees channels other than the news and current affairs channels. The
BCCC is an independent council comprising a thirteen member body consisting of a
Chairperson being a retired Judge of the Supreme Court or High Court and 12 other
members including broadcaster and eminent non-broadcaster members.
The BCCC hears complaints and may issue directions to the channel to modify
or withdraw the objectionable content, and can further fine the channel up to Rs. 30
lakhs. If the direction is defied, the matter may be referred to the Ministry of
Information and Broadcasting for further action, including revocation of permission
to broadcast.
The self-regulatory body for news and current affairs channels is the News
Broadcasters Association (NBA) which has set up the News Broadcasting Standards
Authority (NBSA) to adjudicate complaints in relation to broadcast content on news
channels. The NBA consists only of organizations that are members and submit
themselves to regulation by the NBA. Therefore, the jurisdiction of the NBSA is
restricted only to members.
The NBA has in place a Code of Ethics to regulate television content. The NBSA is
empowered to warn, admonish, censure, express disapproval and fine any
broadcaster in violation of the Code a sum upto Rs. 1 lakh.
Cross Media Ownership
Monopolies in the field of media ownership have a
severely negative impact on the quality of media freedom and plurality in the
country, specifically with respect to news coverage. Issues related to ownership of
media entities have been raised repeatedly in the last few years by both private
observers and government bodies. The overarching concern is that media ownership
does not receive sufficient public scrutiny and is under-regulated.
On the other hand, hastily imposed regulations in this space could infringe on the
freedom of the media, and pave the way towards unwarranted state control. Any

337
 regulation on vertical integration, which connotes ownership of both broadcast and
distribution, and on horizontal integration, that takes the shape of cross-media
holdings, must balance these two competing considerations
At this point of time, there are no cross media ownership restrictions across
print, television and radio in the country. Some restrictions on vertical integration
are in place in the shape of guidelines for obtaining Direct-to-Home platforms.
Restrictions also exist on the number of licenses allowed to FM radio operators in a
given area. Apart from these specific laws, the general competition law in India
applies to the media sector.
As for public interest is concern, Media ownership issues have been raised
repeatedly by the Telecom Regulatory Authority of India, the Ministry of
Information and Broadcasting and the Parliamentary Standing Committee on
Information Technology, among others. The call has been for the introduction of
regulations in this area, but no such steps have yet been taken.
Social Media and the Information Technology Act, 2000
The ability to disseminate information seamlessly over social media has resulted in a
rising need to regulate the content of such information. Section 66A of the IT Act
makes it a punishable offence to send messages that are offensive or false or created
for the purpose of causing annoyance or inconvenience, danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred or ill-will, through a computer device.
Since no guidelines have been laid down for identification of offensive information,
the wide amplitude of the provision has often been used for politically motivated
arrests. Recently, two professors were arrested in West Bengal for posting a cartoon
critiquing a politician. In another incident, two young girls from Maharashtra were
arrested – one for posting a Face book status about the chaotic shut down of Mumbai
due to a popular politician’s death and the other for ‘liking’ the status post. Section
66A is currently under challenge for being violation of the freedom of speech and
expression. Though no stay on arrests under this provision has been granted, the
Supreme Court has held that no person should be arrested for posting objectionable
comments online without permission of senior police officials. The Apex Court held
that Section 66A of the IT Act is unconstitutional.16

16
Shreya Singhal v. Union of India, W/P (Civil) No. 167 of 2012 .

338
 At the same time, social media has often been used as a conduit for instigating
ethnic and communal violence such as false rumors online in August 2012 that led to
an exodus of North-eastern migrants from South India. In 2013, the Election
Commission introduced guidelines to regulate internet campaigns given the vast use
of social media by political parties. Though, the Print and Electronic Media
Standards and Regulation Bill, 2012 proposed the establishment of a media
regulatory authority, the Bill did not get introduced. Under the present Act, the
Cyber Appellate Tribunal is empowered to deal with complaints under the Act but is
largely confined to cases of fraud and hacking.
Regulations over government owned media
Media in India is owned both by government as well as the private sectors.
Government-owned media such as All India Radio, Doordarshan, Directorate of
Field Publicity, Press Information Bureau, etc., have a significant role to play as the
matters they address are not extensively covered by large sections of privately-
owned media. Government-owned media is not only a channel through which news
about developmental initiatives is passed on to the common man but can also be an
independent filter shaping the common man's perception of government policies and
their implementation. However, government owned media is not seen as
adequately independent of the government. Hence, the credibility of the
development stories they produce may be questioned, especially if they focus
exclusively on describing governmental initiatives rather than using their
independent judgment on the efficacy of initiatives. Further, issues also arise
regarding the quality of such government media when compared to private media.
India is the only known democracy in the world where news on the radio is still
a monopoly of the government. Any information broadcast by radio should adhere to
the government's codes, and should not have any political content. Print and TV
media, in contrast, have self-regulating bodies. Radio still has the highest reach
across the country; the illiterate poor as well as people in remote areas rely on it for
information. But the only news available to them is that of the government owned
and controlled All India Radio (AIR).
Doctrine of postponement
The application of postponement orders is narrowed down by introducing
guidelines/parameters such as kinds of publications to be covered, categories of
proceedings which may be covered.

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 Media and Individual Privacy
The exponential growth of media, particularly electronic media, has resulted in
a corresponding decline in an individual’s privacy. The right to privacy, not
specifically enshrined in the Constitution of India, has been held to be implicit in
Article 21.17Though the freedom of speech and expression, as guaranteed in the
Constitution of India, empower the press to disclose information vital to public
interest, it often results in intrusion of privacy. In 2012, a news channel aired the
molestation of a girl in Guwahati, filmed by one of its reporters. In several instances,
sting operations have been used as a medium to exact retribution or have sought to
expose information within the realm of an individual’s private domain having no
bearing on public interest. In 2008, the Delhi High Court took suo motu cognizance
of a manipulated sting operation on a schoolteacher resulting in her suspension and
assault by a mob and directed the government to consider adopting guidelines for
sting operations.18 EMMC under the I&B Ministry has a set of self-regulatory
guidelines for broadcast service providers including guidelines that channels should
refrain from using material related to a person’s private affairs unless there is an
identifiable larger public interest. The Content Certification Rules 2008 under the
Cable Television Networks (Regulation) Act define “identifiable larger public
interest” to include revealing or detecting crime or disreputable behavior; protecting
public health or safety, exposing misleading claims made by individuals or
organizations or disclosing significant incompetence in public office for the larger
public interest. Despite the presence of such norms, sting operations invading
personal privacy by the media is a fairly common occurrence.

Paid News
Another issue that has received a great deal of attention from various sources is
that of paid news 19.The issue was extensively dealt with by the Press Council’s sub-

17
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
18
(2008) 146 DLT 429.
19
In its report on paid news dated 30.07.2010, the Press Council of India (PCI) recommended self-regulation on this issue, and that the
PCI be empowered to adjudicate complaints on paid news. In May 2013, the Parliamentary Standing Committee on Information
Technology (2012-2013) in its forty-seventh report examined issues related to paid news and recommended that either there be a
statutory body to look into content from both print and electronic media or that the PCI be revamped with powers to tackle paid news
and a similar statutory body be set up for electronic media. The Committee observed that there was a need to evolve a comprehensive
definition of paid news so that 'news' and 'advertisement' could be demarcated. The Committee noted that the phenomenon of Private
Treaties gave rise to Paid News and recommended strict enforcement of existing guidelines and codes to bring transparency in Private
Treaties.

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 committee report on ‘Paid News20’ in 2009. The report talked about the way in
which the illegal practice has become organized, with ‘rates’ for the publication of
‘news items’.21 Further, the Parliamentary Standing Committee on Information
Technology, in 2013, has brought out its forty-seventh report on the phenomenon of
paid news, where it has highlighted the ‘dangerous trend’ of presenting paid-for
information as news, that has spread at ‘remarkable pace’ in some parts of the
media.22 The Report also outlined the practice of ‘Private Treaties’, where a non-
media company transfers shares to a media company in exchange for
advertisements, space and favorable coverage. Guidelines are present both in print
and broadcast media that call for clear demarcation of advertisement and news
content. These take the shape of norms under the Press Council of India Act, and the
Programme and Advertisement Codes under the Cable Television Networks
(Regulation) Act. However, these guidelines are either subverted or ignored
altogether.
If it is mere merger of news with commercially paid information, or just
commercialization of the media’s influence, or vulgar display of bias towards a
particular caste or political party or the candidate, it could be a case of ‘ethics’ or
‘breach of code of conduct’, or ‘impropriety’ etc. But selling space or time (by print
and electronic media) to propagate falsity is something far above the unethical
practice which puts the media on par with poll-criminals. It is not only a
transgression against professionalism and ethics but a crime against democracy
besides being a punishable offence under both, the Representation of People’s
Act and the Indian Penal Code. The syndrome is not just the concern of Press
Council of India but a real challenge to the Election Commission, whose aim is to
conduct free and fair polls, because media sold ‘free’ news and its freedom for
packet, and also spread wrong information to seduce the voters to like a particular
candidate. Here again an ethical question arises as the same newspaper, same local
bulletin or same page projects the rival candidates for similar amounts of money.
Media regulation in India is therefore not unified, and has a multiplicity of
regulatory bodies. Further there are issues surrounding the enforceability of
decisions of such bodies. An independent broadcasting media authority along the
20
Paid news, defined by the Press Council of India as “any news or analysis appearing in any media (print and electronic) for a price in
cash or kind as consideration” is now a common occurrence that poses a serious threat to democratic processes and financial markets.
It misinforms audiences and undermines their freedom of choice.
21
Press Council of India, Sub-committee Report on Paid News, <http://presscouncil.nic.in/OldWebsite/Sub-CommitteeReport.pdf>
22
Standing Committee on Information Technology, 15th Lok Sabha, 47th Report on ‘Issues related to paid news’, para 1.2

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 lines of TRAI was first suggested by the Supreme Court in Secretary, Ministry of
Information and Broadcasting v. Cricket Association of Bengal.23 Thereafter, the
Ministry of Information & Broadcasting has made various attempts, the latest in
2007, to draft a Broadcasting Services Regulation Bill in order to set up a
Broadcasting Regulatory Authority of India (BRAI). In Indraprastha People v.
Union of India24, the Delhi High Court recommended that an independent statutory
body be set up under the Cable Television Networks (Regulation) Act, “consisting
of men and women of eminence.” Further they said, “Security of tenure of a kind
should be provided for the Members of the Board so that they are free from
Government interference.” Till this comes into force, the BCCC, according to the
Court should be recognized by the Government of India as competent to decide
complaints on violation of the law by broadcasters. Its decisions shall be treated by
the Union of India as the foundation to take appropriate action against the offender.

A trial by press, electronic media or public agitation is the very antithesis

of the rule of law. It can only lead to miscarriage of justice. 25 In MP Lohia v. State
26
of West Bengal , the Apex Court, admonishing the media, stated, “We have no
hesitation that this type of articles appearing in the media would certainly interfere
with the administration of justice. We deprecate this practice and caution the
publisher, editor and the journalist who was responsible for the said article against
indulging in such trial by media when the issue is sub-judice.” 27 It might be
enlightening to examine how other countries combat the ramifications of ‘trial-by-
media’. Most countries admit that such practices undermine the authority of Courts
and result in loss of confidence in the judicial system.28

The view taken by the Courts in New Zealand is laudable: “In the event of conflict
between the concept of freedom of speech and the requirements of a fair trial, all

23
AIR1995 SC 1236
24
WP (C) No.1200/2011, (Del. HC)
25
State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386
26
2005 (2) SCC 686
27
Ibid., para 10.
28
In Sunday Times v. U.K, 1979(2) EHRR 245, the House of Lords’ view that ‘trial by newspaper’ was not permissible was a concern
in itself ‘relevant’ to the maintenance of the ‘authority of the judiciary’. However, the European Court accepted that: “If the
issues arising in litigation are ventilated in such a way as to lead the public to form its own conclusion thereon in advance, it may
lose its respect for and confidence in courts.” See also 200th Report of the Law Commission of India on “Trial by Media-Free
Speech and Fair Trial Under Criminal Procedure Code, 1973 (Amendments to the Contempt of Court Act, 1971), August 2006, 154

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 29
other things being equal, the latter should prevail.” The Courts in India have taken
30
a similar view. The Punjab High Court in Rao Harnarain v. Gumori Ram stated
that “Liberty of the press is subordinate to the administration of justice. The plain
duty of a journalist is the reporting and not the adjudication of cases.”

The Orissa High Court in Bijoyananda v. Bala Kush 31 observed that – “the
responsibility of the press is greater than the responsibility of an individual because
the press has a larger audience. The freedom of the press should not degenerate
into a licence to attack litigants and close the door of justice nor can it include any
unrestricted liberty to damage the reputation of respectable persons.” The
precedence given by the Orissa and Punjab High Courts to the right to fair trial
over freedom of expression is an excellent example of judicial craftsmanship since
the loss of freedom of press is not absolute but merely temporary. The loss of
immediacy is the lesser evil of the two. The media can print its critique of the
judicial process with wild abandonment after the trial, as Justice Katju has rightly
remarked, “Our shoulders are broad enough and we will ignore it. We are for media
freedom.” 32

Suggestion

1. There is a need for a self-regulatory as well as statutory regulatory authority with

powers to regulate coverage of objectionable material, therefore it is suggested that
rules and regulations must be framed in this regard.

2. The regulations can be introduced to ensure Independence of government-

owned Media.

3. There is a need of legislative and Constitutional amendments which are necessary

to the law on Contempt of Court to ensure Freedom of the Press.

4. There is a need for comprehensive guidelines on reporting of sub- judice matters.

29
Solicitor General v. Wellington Newspapers Ltd., 1995 (1) NZLR 45: “In pretrial publicity situations, the loss of freedom involved
is not absolute. It is merely a delay. The loss is an immediacy; that is precious to any journalist, but is as nothing compared to the
need for fair trial.”
30
AIR 1958 Punjab 273
31
AIR 1953 Orissa 249
32
J. Venkatesan, Apex Court to lay down coverage norms, http://www.thehindu.com/2008/08/19/ stories/2008081957360100.htm
(Last visited on September 28, 2009

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5. The statutory body must have the powers to adjudicate complaints of false sting
operations and also a specific statutory provision for treating false sting operations
as a punishable offence.

6. The Right to Privacy law must be introduced and existing framework of media
laws is to be rightfully amended to include specific guidelines governing disclosure
of private information by the media.

7. The Statutory Authority must monitor and regulate the propagation of paid news.

8. The comprehensive, independent competent authority should be introduced as

Media Communication Commission for regulation of media and Convergence of
Media.

9. It is also suggested that the ethical code should be provided with certain duty and
responsibilities of Media personnel.

10. For the Media Accountability is better served, the existing self-regulation
mechanisms require strengthening and uniform and comprehensive, Media Law should
be introduced across all types of Media.

11. There must be provision for regular training for Media personnel particularly
journalists for avoid human rights violations of common men’s particularly right of
privacy and fair trial .

12. For uniform curricular of media personnel i.e. Journalists print and electronic both,
the Press Council of India is need to be strengthened .This regulatory authority must
work in the line of Bar Council of India or Medical Council of India to frame rules.

13. Analyses of various national, international law and policies relating to media and
information communication technology as well as concept of speech and expression
enshrined in Constitution of India, following Amendments has been made for balance
in media and individual freedoms:

(A) The Media Communication Convergence Bill has been drafted and
implemented to regulate the Indian media.

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(B) The need of hour that after sixty five years, time is ripe to review and amend
some of the Fundamental Rights, particularly those Fundamental Rights which
have been judicially deduced, i.e. Art.19 (1) (a), 19(2) and Art.21.

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