As the fourth pillar of democracy, the role and importance of the media is critical and often invites the state’s wrath in the form of regulations. JWALIKA BALAJI writes on the Registration of Press and Periodicals Bill, 2019 which holds potential hurdles to the free operation of media in the country.
HE press is one of the first lines of defence that actively engages in criticising the government for its actions and policies.
It is integral to democracy,as it provides all the requisite information about those who are standing, their ideas, and their actions. This creates informed voters, who will be able to better exercise their discretion while voting in the elections.
Freedom of press is an intrinsic part of Art. 19(1)(a).
Given that the press is so important to the existence of democracy, it is usually targeted by the government when it is trying to bring in a huge policy change.
Media Repression a Common Tool of the State
Upon declaration of Emergency in 1975, one of the first orders given by Mrs. Gandhi was to cut electricity to all newspapers in Delhi. Another order was to block advertisements to any newspaper that criticized the government. Therefore, the source of revenue to these newspapers was cut off and they could not carry on with their publishing.
An Act was passed to further restrict the wide access that some newspapers enjoyed in those days – Monopoly and Restrictive Trade Practices (MRTP) Act. This effectively regulated the number of newspapers that could be in circulation and under what conditions. These severe measures acted as a terrible impediment to the free dissemination of news, especially that which criticized the government for its actions.
This pattern is witnessed again in recent times.
There were widespread protests all over India following the abrogation of Art. 370 and introduction of the Citizenship Amendment Act. The government blocked off information and implemented internet shutdowns in 2019, that lasted close to 4200 hours. This ensured that the press could not function efficiently or freely spread information.
The central government has also actively cut off advertisements to newspaper groups that criticise the government. The last straw in this exercise to effectively curb Art. 19(1)(a) is the introduction of Registration of Press and Periodicals Bill, 2019.
Issues of Registration of Press and Periodicals Bill, 2019
The bill has numerous conditions that effectively and pre-emptively censor the press and publishers of periodicals.
A periodical has to be published once every twelve months, otherwise, the license can be revoked. However, in this era of constant internet shutdowns and power blackouts, it is hardly practical to expect periodicals to strictly adhere to this requirement. If this condition is strictly implemented, many periodicals will lose their licenses. Such stringent requirements are harmful to publishers, rather than the Bill’s claims of making the process simpler.
The Bill enables the Central and the State Government to frame regulations for issuing government advertisements in newspapers, accreditation of newspapers etc.
Advertisements have a major effect on the functioning of the press since they make up a major chunk of the revenue of a newspaper company. This delegated legislation gives wide scope to the Executive to be biased while framing rules relating to advertisements.
What can the Parliament do on the Bill?
According to the public choice model, it is easy for rent-seeking special interest group legislation to be passed easily when the transaction costs are lower. This means that when only the Executive is taking a call on the policy rules to be framed, and the exact provisions aren’t scrutinised by legislative debates and passage by voting, the big players in the news industry can take advantage of it and get the rules created in their favour.
The government may also frame some rules which are beneficial to certain companies that are pro-government, as history has already shown.
Section 22 of the draft bill gives the Central Government the power to make rules in many matters related to the functioning of press and periodicals. This means that a small body of persons will be able to control the dissemination of information throughout the country.
The Calculus of Consent mentions that the more the number of people involved in making a decision on legislation, the lesser the social cost. This is because each person would look out for their own interest and would not consent to a decision that’s harmful to them. Since unanimity cannot be achieved (as the decision-making costs would be too high), the Parliament follows the simple majority rule for passing ordinary bills.
However, if rule-making were left to the Executive alone, the number of people deciding upon the final rules would definitely be less than those voting upon it in the Parliament. The desired level of consent will not be achieved. Therefore, these rules framed by the Central Government should be laid in front of the Parliament and subject to legislative scrutiny.
This would, to some extent, ensure that there is Parliamentary oversight and that numerically, more people would be able to review the exact clauses and debate over its ramifications. These rules could also be open to public oversight or even referred to as the Committee of Subordinate Legislations.
Even the condition that if the publisher of the periodical has been convicted of a terror offence or has done anything against the security of the state, then the license to the periodical will be revoked is arbitrary. Similarly, the prohibition of publication by persons convicted of terrorist or unlawful activities or anything against the security of the State is unreasonable and arbitrary.
One, the principles of criminalisation proscribe such broad restrictions on the economic or professional freedoms of a convict over and above the punishment prescribed in the law and sentenced to him or her by the criminal justice system.
Second, there is a significant possibility of abuse of this provision especially because it extends to a conviction for ‘anything’ against the security of the State.
Moreover, the provision does not seem to satisfy any reasonable purpose and does not proportionately justify the carte blanche of restrictions on individual professional activity. These make it violative of Art.14.
Therefore, it can clearly be seen that there are so many pre-conditions to owning or operating the press and periodicals that this Bill may be considered a form of pre-censorship by the Government.
It does not further the freedom of Press as given under Art. 19(1)(a) and is rather inimical to it.
The False Nexus between Digital and Print Media
Social media has become the main source of news online nowadays. It is very regressive in these times to have a condition that requires newspapers to have a print edition to maintain a digital edition.
The definition of ‘news on digital media’ as given in Section 2(k) is vague. It is still unclear as to whether this section applies to blogs, news video channels on YouTube, social media platforms and the pages run on the same, etc.
Fuller, in his concept of inner morality of laws, says that rules must be understandable. In this case, the phrase ‘news on digital media’ can be interpreted in any way. The administrators of these news channels must not be penalised because the law that applied to them was vague. The term must be clarified and defined precisely.
Nowadays, the easiest way for information to spread quickly is through social media. This has been used extensively in times of natural disasters, protests and social movements. This shows that social media has effectively been used to empower and help out a lot of people in times of distress.
Curbing various forms of news portals that exist solely on the internet could be detrimental to this effect.
Dworkin, in Taking Rights Seriously, says that if a right is held conscientiously by a person, it cannot be taken away by the State for a competing general interest. It can be curbed only when there is a competing individual right.
In this case, freedom of speech and expression is a right that is very dear to people, and freedom of the press is essential to the same. It cannot be curbed by the government which cites a general competing interest of regulating news or information. The government has to show specific harm to individuals. Until the government is able to do so, such wide restrictions on platforms that publish news on digital media are unacceptable.
(Jwalika Balaji is a third-year student at NLSIU. She was a member of the student research panel that assisted Indira Jaising with responding to the Draft Bill. Views are personal.)