Media, Censorship and Propaganda– A Legal Analysis

Introduction & Background

Censorship in India, which involves the suppression of speech or other public communication, raises issues of freedom of speech, which is protected by the Indian constitution. The Constitution of India guarantees freedom of expression but places certain restrictions on content, with a view towards maintaining communal and religious harmony, given the history of communal tension in the nation. India as a democracy has seen many ups and down in her journey. All her four pillars—the executive, the legislature, the judiciary, and the press—have also acknowledged different seasons of success and crisis.  The word ‘media’ is derived from the word medium, signifying mode or carrier. Media is intended to reach and address a large target group or audience. Media is the sword arm of democracy. Media acts as watchdog to protect public interest against malpractice and create public awareness. Propaganda is information that is not objective and is used primarily to influence an audience and further an agenda, often by presenting facts selectively to encourage a particular synthesis or perception, or using loaded language to produce an emotional rather than a rational response to the information that is presented.[1]  Propaganda is often associated with material prepared by governments, but activist groups, companies, religious organizations and the media can also produce propaganda. Often the terms media, propaganda and censorship are inter related and interconnected.

Analysis & Illustrations

The Indian constitution in Article 19 (1) (a) grants its citizens the freedom of speech and expression, though with certain limitations. Yet, governments right from Independence have shown their propensity to censor.[2] The Indian media has been plagued with attack on its journalists, on their offices and sometimes, even bans on their channels. [3] Is freedom of speech even a reality? The World Press Freedom Index measures the level of press freedom that journalists enjoy.[4] In 2018, India has been placed on the 136th position. India’s poor record can be attributed to the history of intolerance shown towards the opinions expressed by media that are contrary to those of the government. Press freedom is an illusionary term in India, anything that goes against the government is termed as anti-national, channels offices are stoned and there is rampant vandalism. [5] The one-day ban on NDTV channel is a testimony to the shrinking liberty granted to the press. In the colonial times, the British government not only controlled the content circulated by the media but also had the broadcasting monopoly. This was followed by License Raj where the government had the complete monopoly over the media space. Doordarshan was the only channel that was permitted to broadcast news and it was under government control. Even though, the fundamental right of freedom of speech and expression given in the constitution was acknowledged, the government still dominated the media broadcasting. [6] Thus, the colonial rules of media monopoly manifested itself in the newly independent India.

The Emergency period of 1975 was a dark period in the history of independent India. All fundamental rights, except Right to life were suspended. A democratic government soon turned into an autocracy[7]. People whose opinions were against those of the government were jailed. Media during the time of emergency was used to spread government propaganda. It was used as a political tool to indoctrinate people. It no longer served as a free space where people could voice out their opinions, criticise the government and their policies and participate in the democratic process by having the power to dissent. In 1990s, India got on the bandwagon of privatization, liberalization and globalization. The Indian economy opened up for foreign investors in a number of sectors, broadcasting was one of them. 1990s brought about an advent of privately owned media houses. This threatened the government’s control over broadcasting and which eventually lead to the Cable Television Act of 1995. This Act gave a vast amount of censorship powers to the governments. The Centre could not just ban a channel but the channel operator too. The Programme Code is another statute that the media houses had to follow in order to be broadcasted. They were given a laundry list of instructions that the electronic media houses had to comply with. This bizarre act has a watchdog that censor’s information sent by the media on its own account.[8]

The recent attacks on journalists are a threat to the stature of freedom given by the constitution in expressing our opinions. Majority of the attacks were carried out by the police, leaders of the political parties and their supporters, sand and coal mafia, criminals representing illegal constructions, mob resisting media coverage and even lawyers.[9] The recent case of a journalist being molested and her camera being taken away by the police while reporting a JNU protest has once again sparked the debate regarding the safety of media personnel. An attack on a journalist is indirectly is an attack on their freedom of speech and expression. The physical manifestation of censorship is seen in these attacks. In print media, the censorship and harassment of the Kashmir reader due to a certain news report led to their newspaper offices being raided, their printing press being closed down and a ban on their publication for three months. This hooliganism and vandalism stems from the innate dogmatism of those in power.[10]

Recently, the Supreme court stated that the criticism of the government cannot amount to sedition or defamation under the law. Yet almost all governments have filed lawsuits of sedition and defamation against the media houses. The tug of war between the freedom of speech and sedition still continues. The manipulation of such incidences to censor news is a well-known tactic played by the government. This autocratic rule of the governments endangers the transmission of speech and opinion that isn’t in line with theirs, thus censorship acts as a legal gateway to stop any sort of information that isn’t in line with the government’s ideology.[11]

The most discussed controversial chapter among them remains the censorship of press during the 21-month long National Emergency from June 1975 to March 1977. The central government abolished the press council and imposed a ban on the publication of anything that seemed ‘objectionable’, and only pro-government news was allowed to be published. During this severe crisis also there were vocal media stalwarts such as Janardan Thakur, Nikhil Chakraborty, and Romesh Thapar, who did not bow down to extreme pressures of the central government though the gag was removed on March 21 1977 to restore civil liberties.

The one-day ban on Hindi channel NDTV India has refocused public attention on the government’s anachronistic power to censor television channels. This power has been used several times by many different governments but never has it been used so forcefully against a major Indian news channel. This may have been a step too far.Narendra Modi-led government added a new ground of censorship to the Programme Code which drastically curtails how news channels can report terror incidents. Channels can report only a “periodic live briefing by an officer designated by the government.”Not a single news channel that covered the Pathankot attack trained their cameras solely on the government’s spokesperson. They did what news channels are supposed to do – report the news. The ministry claims that NDTV India revealed sensitive information during the attack but ironically many of those details had already been revealed by the government spokesperson himself.There are two aspects of NDTV’s blackout order that are illegal. Administrative law demands that all actions against licensees – such as cable television channels like NDTV – must be reasonable. There are many legal tests for reasonableness, but the blackout order does not pass any of them. In particular, the action against NDTV is blatantly impartial. Consequently, the blackout order can be struck down for unreasonableness.

There is a difference between the content of speech and the manner of its carriage. Content refers to words and carriage to the medium by which the words are transmitted. Freedom of speech covers both content and carriage. But depending on the medium of its transmission – television, radio and so on – speech is regulated differently. Cable television is a particularly heavily-regulated medium and a brief background is necessary to understand why.

Government Monopoly

Free speech threatens authoritarian governments. In colonised India, not only did the government control the content, it also completely dominated carriage through its exclusive monopoly over all broadcasting media. That monopoly is derived from mid-nineteenth century colonial laws to regulate telegraphs. The same monopoly manifests today through an arcane Licence Raj. No broadcasting can occur without multiple licences.[12]

The state’s stranglehold over the content of speech was broken when the constitution recognised the right to free speech. But the government guarded its monopoly over carriage by banning everyone except itself from television and radio broadcasting. Without a medium to transmit ideas, the right to free speech was diminished.In 1952, broadcasting minister B.V. Keskar purged the radio transmission of film music because he thought it was too vulgar. During the Emergency, Indira Gandhi abused the government’s monopoly by ceaselessly broadcasting propaganda. To avoid such capriciousness, there was a proposal to create an autonomous broadcaster. Successive Congress governments stymied that proposal for two decades before Prasar Bharti was brought into force in 1997.

Rise of Cable

In the 1990s, private cable television threatened the government’s broadcasting monopoly and offered people alternate ways for the carriage of speech. Unwilling to cede control, the government banned cable television, a flat-footed response that failed miserably. Cable television proliferated in a legal grey area until 1995 when the Supreme Court declared that private broadcasting was constitutionally protected. Reacting to the state’s loss of control over broadcasting, parliament enacted the Cable Television Act in 1995. It gave the government vast powers of censorship. A district-level officer now has the power to ban a channel. The Centre has even broader powers: it can ban not just a channel, but the cable operator itself.[13]

The last time the Supreme Court was asked to review a badly-drafted censorship law was in the Shreya Singhal case[14]  in 2015 concerning section 66A of the IT Act, a law that was struck down. The Programme Code is much worse; it has just escaped constitutional scrutiny for a long time.

In the case , Ranjit D. Udeshi vs State Of Maharashtra[15], the appellant, a bookseller, sold a copy of the unexpurgated edition of  “Lady Chatterley’s Lover”. He  was  convicted under the Indian Penal Code. In his  appeal  to the Supreme Court he contended that : (i) the section was void because it  violated the freedom of speech  and  expression guaranteed  by Art. 19(1)(a) of the Constitution of  India., (ii) even if the section was valid, the book was not obscene and  (iii) it must be shown by the prosecution that he sold the  book with the intention to corrupt the purchaser, that is to say, that he knew that the book was obscene.

(i) the section embodies a  reasonable restriction upon the freedom of speech and expression guaranteed by Art. 19  and      does  not fall outside the  limits  of         restriction permitted  by cl. (2) of the Article.  The section seeks no more than the promotion of public decency and morality which are the words of that clause. (ii) The book must be declared obscene within the meaning of s. 292, Indian Penal Code. [81C]. The word “obscene”  in  the  section is  not limited  to writings,  pictures etc. intended to arouse  sexual  desire. At  the same time the mere treating with sex and  nudity  in art and literature is not per se evidence of obscenity. The test given  by Cockburn C.J., in Queen v.  Hicklin [16],  , to the effect that the  tendency  of the matter charged as obscene must be to deprave and  corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far followed  in  India, is the right test.The test  does not offend Art. 19(1) (a) of the Constitution. In judging the obscenity of one book the character of  other books  is  a collateral issue which need  not  be  explored .iii) The  section   does  not  make       the   book-seller’s knowledge of obscenity an ingredient of the offence and the prosecution need not establish it.

Conclusion

History has repeatedly shown us that no matter which political party is in power; the government is inherently censorious. The freedom of press today is highly restricted with the media houses self-censoring their pluralistic views. This endangers the very core of democracy and the national discourse. The recent events with the attacks and murder of journalists, vandalism on media houses and bans on news channels, there is a significant escalation against India’s press freedom. Free speech threatens authoritarian governments and slowly our democracy might just fade away to autocracy, snatching away our right to dissent, perhaps forever.

[1] Smith, Bruce L. (17 February 2016). “Propaganda”. Encyclopædia Britannica. Encyclopaedia Britannica, Inc. Retrieved 23 April 2016.

[2] Nagle, D. Brendan; Stanley M Burstein (2009). The Ancient World: Readings in Social and Cultural History. Pearson Education. p. 133. ISBN 978-0-205-69187-6.

[3] https://thewire.in/media/india-long-history-of-television-censorship

[4] https://www.indianfolk.com/media-censorship-freedom-speech-edited/

[5] https://www.globalethicsnetwork.org/profiles/blogs/role-of-media-in-our-society

[6] Madhavi Goradia Divan -“Facets of Media Law”

[7] Madhavi Goradia Divan -“Facets of Media Law”

[8] https://www.youthkiawaaz.com/2018/05/intimidating-truth-speaking-and-seeking-journalists/

[9] Madhavi Goradia Divan -“Facets of Media Law”

[10] http://hir.harvard.edu/article/?a=13083

[11] Madhavi Goradia Divan -“Facets of Media Law”

[12] http://hir.harvard.edu/article/?a=13083

[13] https://www.emeraldinsight.com/doi/abs/10.1108/00907320010326719

[14] AIR 2015 SC 1523

[15] 1965 AIR 881, 1965 SCR (1) 65

[16] (1868) L.R.  3 Q.B. 360