‘Democracy is a government of the people, by the people and for the people’, said Abraham Lincoln. It is a well settled fact that an informed citizen plays a pivotal role in democracy, the reason being- Public opinion is emphasized as a fundamental tool against the autocracy of the representatives of the people. How is this public opinion formed? The most effective medium is media and press. The important task of keeping the citizens informed about the actions of the government is carried by it, thus, a considerable amount of importance is given to the freedom of speech and expression guaranteed by Article 19(1) (a). It was concluded by the constituent assembly that there was no need to have a separate provision for freedom of Press unlike the First Amendment of USA. It is the settled view of the Supreme Court that freedom of speech and expression includes freedom of the Press and circulation.[1]

The success of a democracy depends on the efficacy of the three pillars namely- Legislature, Executive and the Judiciary. Media rightly called as the fourth pillar acts as a watchdog by bringing these 3 pillars under the public scrutiny. It is undisputable that people have been benefitted because of the fearless approach of the journalists.

In S P Gupta v Union of India, the Supreme Court held that, “No democratic government can survive without accountability and the basic postulate of accountability is that people should have the information about the functioning of the government.”[2]

Investigative Journalism is one such method engaged by the media to uncover the truth which is wanted to be hidden from the public. It is also termed as Undercover Journalism or Sting Operations. This article attempts to throw some light on the investigative journalism aspect vis-à-vis right to privacy.

What is Investigative Journalism?

Investigative Journalism is a means through with the media discloses the matter which is otherwise not disclosed deliberately mostly by someone in position of power.[3] Through thorough fact finding missions held in secrecy, analysis of the data and exposure, investigative journalism educates the public. Typically, in such cases the media persons pose themselves as criminals in order to set up a trap. They catch the concerned person by means of deceit. 

Why do we need Investigative Journalism?

            The need for investigative Journalism stems the public’s right to know. This is reiterated by the Supreme Court in the landmark judgement of Romesh Thappar v State of Madras. The court held that, “The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves. In some the fundamental principle involved is the people’s right to know.”[4]

Types of Investigative Journalism-

Investigative Journalism can be of two types, namely, positive and negative.

Positive Operations are those which welfare the society as the disclosure of such cases interests the society.

Negative Operations are those which infringe the privacy of individuals, causing severe harm to the reputation of the individual. These do not benefit the society and may be termed as unethical.

Protection of Privacy

A lot of importance has been attached to the investigative journalism practiced by media, however responsibility is associated with every authority and hence the need for media to be accountable and implication of an ethical approach by it can’t be stressed enough. If it be left unchecked, it might be vulnerable to abuse of the liberty or freedom given.

It raises a concern as the method of deception is adopted to catch the criminal in investigative journalism. Sometimes such a condition is created where the criminal is tempted to do the wrongdoing who might otherwise be innocent, thus bringing into question the limitation of public morality and decency under Article 19(2) of the Constitution[5]. The intent of the criminal might not be known, henceforth, a check on media is unobjectionable.

A lot of times, sting operations are carried to increase TRP’s by means of obstructing privacy. The moot question that arises at this point is whether the privacy of individuals be compromised so as to let media exercise its fundamental right of speech and expression. In this era of technological advancement, it becomes quite easy to infringe privacy of a person. With a click, a whole lot of information can be obtained. Small camera’s, GPS trackers, mics can aid the operations.

The person on whom investigation might be carried, has his/her reputation, family and career to protect. In spite of increasing invasion of privacy, there is no explicit provision of law which protects the privacy of individuals. Right to privacy of an individual is inherent in the protection of life and liberty assured by Article 21 of the Indian Constitution.[6]  Article 12 of the Universal Declaration of Human Rights, 1948 (UDHR), also protects the privacy of individuals by restricting by restricting arbitrary interference.[7]

 However, like freedom of speech and expression, right to privacy is not absolute. It may be considered as limited if public interest outweighs individual privacy.[8] Furthermore, in cases where the privacy of an individual is infringed without his consent will be objectionable in a court of law and would amount to damages as a citizen has a right to safeguard his own privacy, family, career, etc. As stated above that right to privacy is subject to public interest, a balance needs to be sought in such cases. Where there is sufficient reason to believe that even if protection of privacy is essential, encroachment of privacy would help in gathering of important information which would advance public interest, then public interest in disclosure will prevail unless such disclosure is of highly personal nature. Positive Investigative Journalism backs this idea as it deals with disclosure of cases of corruption, bribery, terrorism, grievous crimes. Furthermore, it is held by the court of law that privacy can be compromised when the person is a public servant and the matters relates to discharging of his official duty.[9] It won’t be objectionable in cases of public servants as the people have a right to know every public act of the public functionaries, if norms of journalism are followed.

In the judgement Labour Liberation Front v. State of Andhra Pradesh, the Andhra Pradesh High Court further commentated on the said issue, it stated that when a case involves high profile person the media tends to cross its line and this might lead to dangerous turns. It results in abuse of the technological advancements available and causes unhealthy competition among the journalists. In the end the whole idea of responsible journalism gets compromised.

Conclusion

With no concrete legal provisions on Freedom of Media and Press, Right to Privacy and procedures or regulations relating to Investigative Journalism, confusion is bound to occur. There have been attempts to pass draft bills relating to protect of data and privacy in 2011, 2014 and 2017, however, no success has been achieved. Correct use of technology can help in disclosing truths. What needs to be kept in mind is that the freedom of speech and expression is not only for the benefit of media but for the benefit of the whole nation. In cases of clash between the two fundamental rights, only a case to case approach can give a clarity as to which right over weighs the other in that particular matter because there is no blanket winning right.

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 One such Act which deals with regulations imposed on print media is The Press and Registration of Books (PRB) Act, 1867(25 of 1867). The said act makes registration with the concerned authority mentioned compulsory along with laying down a provision for preservation of books and periodicals printed in whole of India. On 25^th November, 2019 the Ministry of Information and Broadcasting released a public notice in order to seek public consultation on the draft of Registration of Press and Periodicals (RPP) Bill, 2019. This bill, if passed, will be a replacement to the existing law – The Press and Registration of Books Act, 1867.

The bill seeks to get away with all the earlier provisions of the PRB Act, 1867, enabling the Central and State Government to formulate appropriate rules/regulations to regulate the criteria/ conditions for issuing Government advertisements in newspapers, accreditation of newspapers and such other facilities for newspapers.[1] Through the draft bill, the Ministry proposed to simplify the registration procedure by creating a Press Registrar General along with laying down a simple system of registration of e-papers. This article attempts to briefly summarize features of the draft bill as are mentioned above.

I.     Ambiguous Definitions

The RPP Bill leaves space for concern by making major changes some of which are brought to light through this article. It is widely attacked for vague and ambiguous definitions. “News on digital media” means “news in digitized format that can be transmitted over the internet, computer or mobile networks and includes text, audio, video and graphics.”[2] It may lead to various interpretations as its ambit looks broad, such as-

1.   Posts put on social media or blogs

2.    It might also include e-newspapers of the existing newspapers

 Imposing registration requirement on the former is excessive as there are thousands of individuals who share news content on a daily basis. It may lead to violation of  fundamental right of Freedom of Speech and Expression of such individuals guaranteed under Article 19(1)(a) of the Constitution as the ambit of interpretation of the said definition is broad. The latter interpretation is a result of three other definitions, namely- publication[3], publish[4], publisher[5] given in the bill.

Due to this ambiguity, who exactly is to register under Section 18 of the RPP Bill can’t be clearly understood. Till date no news website has had to register with the government, thus making this provision first of its kind.

II.     Editors to be Indians

“Editor of a periodical means an individual, whether called editor, chief editor, group editor or editor-in-chief or by any other name called, being a citizen of India and is ordinarily resident in India responsible for the selection and finalization of the content of a periodical”[6]

This provision of the draft bill makes it mandatory for the editor of the periodical to be an Indian citizen. The current law (PRB Act) does not have such a provision. On one hand this provision proposed will be feasible as it is difficult to hold a person of some other nationality accountable in Indian courts, if the need be. While on the other hand the provision can be challenged as a violation to Article 14 of the Indian Constitution. Thus the said provision has its own pros and cons.

III.     Registration Powers with the Press Registrar General

Section 5(1) under Part III of the bill creates a provision for the appointment of the Press Registrar General by the Central Government. The bill seeks to polarize the system of registration of the periodicals or newspapers with the Press Registrar General according to the procedure laid down under the bill. He is also empowered with the responsibility to revise Certificate of Registration, receive annual statements from the owners of the periodicals, impose fines or penalties, revoke or suspend the registration of the periodicals.[7]

However the bill has proposed to register the publishers of the news on digital media with the Registrar of Newspapers of India.[8]

IV.     Entities not allowed to bring out Publication

The bill allows anyone who is a citizen of India to bring out its publication, provided that such a person has not been convicted by the court for offence involving terrorist or unlawful activity and having done anything against the security of state.[9]

While it is stated that the meanings of ‘terrorist and unlawful activity’ shall be traced to the Section 2 of the Unlawful Activities (Prevention) Act, 1967, the draft fails to define what shall be included under the term ‘security of state’. It thus leads to lacunae and disagreements among the parties involved.

V.     Power vested with Government

The Press Registrar General shall be bound by the decision of the Central Government in case a question of policy occurs. The Central Government will also be immune from legal proceedings against it. It has the power to frame rules in accordance with the provisions mentioned under Section 22 of the Registration of Press and Periodicals Bill, 2019.

VI.     Provision of Prosecution of Publishers to be struck down

One of the important features of the new RPP Bill, 2019 is to do away with the provision of prosecution of publishers. The present Press and Registration of Books (PRB) Act, 1867 contains provisions under which for an offence listed under the act, a publisher or whosoever concerned shall be punished with a fine or imprisonment or by both on account of conviction. On the contrary the draft bill seeks to punish the concerned only with a fine as mentioned under Part V of the said Bill.[10]  

VII.     Appellate Board

In case of grievances, an appellate board may be called by the Press Registrar General and its decision will be consider as final. This is mentioned under Section 16 of Part VI of the Registration of Press and Periodicals (RPP) Bill, 2019.    

         The objective of the present Press and Registration of Books (PRB) Act, 1867 is to regulate the newspapers and press systematically and it is much based on the colonial era. The major change that the draft bill proposes distinct from the PRB Act is a control over digital media. The bill does not amplify the Freedom of Speech and Expression but some of the reliefs like prohibition on prosecution will surely be an improvement for the publishers. Due to the pros and cons as mentioned above, only time can answer whether it would be better than the existing law or will be subject to public objection, if passed. 

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Article 2(viii) of the WIPO (World Intellectual Property Organization), states that ‘intellectual property’ shall include rights relating to- literary, artistic and scientific works, performances of performing artists, phonograms, and broadcasts, inventions in all fields of human endeavor, scientific discoveries, industrial designs, trademarks, service marks, and commercial names and designations, protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.[1]

Economic growth is undoubtedly one of the major reasons for the growth in study and importance of IP over these years, given the fact that enforcement of IPR is a fundamental component international economic trade. Multinational companies and firms have started to lay a great deal of importance on copyrights, patents and trademarks in order to protect their creations in the world market. In developing economies like India IP has created much needed job and has aided in increasing foreign direct investment. The government has thus time and again initiated plans for better understanding of IP among the people such as setting up of teams which can guide the businessmen regarding works that can be copyrighted and patented, availability of software. Thus indicates the efforts of government to increase foreign direct investment through this sector.  

Protection and enforcement of IPR is pivotal for promotion of greater transfer of technologies among the nations, which in turn paves the way for economic developments. It has been found through various researches conducted that countries with low GDP usually have a weak IPR enforcement, on the contrary, countries with higher GDP have high IPR enforcement. Because of this relation between GDP and IPR, countries with low GDP tend to suffer from lack of technological harms thereby impacting overall development of the country.

Intellectual Property is also fundamental for business personnel. In recent times, IP is the most valuable asset a person possess, for e.g., copyright over the works of author or composers of entertainment industry, trade secrets for the industrialists, trademark for s businessman, and patent for the innovators. Such increasing applicability of the IPR becomes more important given the fact that many foreign entrepreneurs are entering domestic market and also a lot of Indian industrialists move to different countries for opening their businesses.[2]

The reality is that such licensed innovation can either improve or deteriorate the monetary development targeted. In developing economies, a huge chunk of labor is employed in copying goods, when IPR is put into action in such countries, these laborers will lose their jobs and will have to find alternate options. The other problem faces due to IP is lesser access to technology or drugs which are patented. These problems pose a threat to introduction of strong IP rules, and policies in countries. IP laws sometimes lead to upsurge in prices due to monopoly, loss of jobs, etc. which compel the companies to pay royalties on products created by them. On the other hand it is argued that IP should be encouraged as it is valuable resource for the country. The question which arises at this point is why a strong intellectual property protection required in the functioning of economy? The answer to this question is that when the creations and innovations are protected, the investors get assured that they won’t fall prey to frauds and piracy. When patents are published, other firms use the technology invented or data produced to further the inventions, this creates a healthy environment for businesses to exist. Thus, by creating a framework to fight against temporary drawbacks of IPR, developing economies are now encouraging development of intellectual property by providing more support to research and development. The cumulative effect of small inventions can be fundamental in growth of knowledge and technology. Companies and enterprises in small economies should invest.

Since past 2 to 3 decades, India has been increasingly investing in protection of IP and made a number of changes in policies and regulations governing IP. In 1994, India signed the agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS), because of which amendments were made to the Patents Act of 1970. Today patents are not only granted for methods but also for pharmaceutical products which has led to growth of economy. A report of WIPO shows that, pharmaceutical patent applications have increased after India amended patent laws. Pharmaceutical industry of India has grown from 6 billion US Dollar in 2005 to 30 billion US dollar in 2015 and it is expected to go up to 55 billion US Dollar by 2020.[3]  It has been observed that there is increase in investments by foreign companies due to advancements in the IP laws.[4] This not only leads to increase in investments but also increase in payment of taxes and employment opportunities for the people of India. Established multi-national companies are a proof to effects of intellectual property on the economy.

At present, India needs to shift its focus to inviting more and more MNC’s and start their research and development to increase the economy of India. Increasing number of nations have started to realize that there can be major consequences due to IP policies and that the stakes are high but today new ventures are ready to take risks. There is a tremendous shift in approaches of businesses today due to changes taking place in legality and business models. Thus it is fundamental to recognize the role played by IP and the status of IP laws. Enactment of IP laws in India is itself a major development in the market economy.   

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The existence of free and fearless media in a democratic society is eminent. Media not only provides information but also acts as a catalyst in forming opinions of millions of people, thereby, educating the citizenry about the happenings around the globe. It is irrefutable that the pivotal role of media has resulted in greatest gains for the people. Free media is a result of the fundamental right of freedom of speech and expression available with it.[1]

The media is expected to work within the framework of the Constitution and the other rules and regulations laid down by the Press Council of India. To keep a check on the misuse by it on the freedom provided to it, an independent judiciary is a necessity. The working of both judiciary and media in harmony are important for the working of the democracy and for ensuring maximum justice. However often when media tries to interfere with the administration of justice, the judiciary using its power guaranteed by the Constitution, imposes reasonable restrictions on media’s freedom of speech and expression as specified under Article 19(2) of the Constitution.

 One such reasonable restriction specified is Contempt of Court. Contempt of Court is a medium through which the judiciary upholds its dignity. This limitation ensures that no outside force can intrude into the course of justice. Apart from Article 19(2), Article 129[2] and Article 215[3] of the constitution protect the contempt of court proceedings. 

Contempt of Courts Act, 1971

          The first legislation was the Contempt of Courts Act, 1926 which after several amendments is Contempt of Courts Act, 1971. Being courts of record, the Supreme Court and the High Court have inherent power to take the proceedings under contempt of court. Section 2(b) and 2(c) of the said act define civil and criminal contempt respectively. Civil contempt is the disobedience of the orders of the any court. Criminal contempt refers to any publication (whether by words spoken or written or by signs or by visible representations) which scandalizes the court, prejudices the proceedings, interferes with administration of justice.[4] The publications which fails to fulfill the conditions mentioned in section 3 would not lead to contempt of court, as section 3 protects an individual from contempt proceedings if done in ignorance of a pending suit. The defenses available to the contempt proceedings are mentioned in section 4 and 5 of the act. It is to be noted that it won’t amount to contempt of court when the publication is not made during the pendency of the case.[5] Furthermore, the question of pendency won’t occur when the contempt is relating to Sec 2(c) (i), i.e., scandalizing any court. Sub judice means a matter which is under a judge or which is pending, it is further defined by the explanation of section 3(2) of the act.

Interference by the Media

The reason behind initiating contempt proceedings is not to restrict freedom of speech and expression but to stop disruption to administration of justice. Sometimes due to over enthusiasm the media tends to cross the limits by vigilant reporting in matters which are subjudice. This results in media trails, wrong public opinion, giving away of misinformation. The important aspect of public faith in the justice of the country gets affected.

Sometimes extensive coverage during the trail can violate a person’s right to free trail. Right to Free trail essentially means a trail without any extra pressure. In the Kathua gang rape case which happened in January 2018, some media houses revealed the identity of the minor victim. The Delhi High court took suo moto cognizance and ordered those media houses to deposit ₹10 lakhs as penalty. Section 23 of the Protection of Children from Sexual Offences Act and Section 228A make revealing of identity of rape victim a punishable offence.[6]

Another example which is of relevance here is of the accused of 26/11 Mumbai terrorist attack. The media channels even before the final judgement held debated and declared by itself that the accused will be hanged to death[7]. Such acts of the media lower the importance of the courts in the eyes of the people. It is thus important for the courts to use contempt of courts proceedings as a shield against the interfering acts of media to avoid violation of the accused and victim’s right to free trail and any serious risk of prejudice.

In the case of R.K. Anand v. Registrar, Delhi High Court[8], the Supreme Court stated that a report relating to a subjudice matter can be published only after the prior consent of the courts or it would amount to consequences. It also stated that due to provoking publications by media, regardless of the result, the public will hold the accused guilty.

Fair and Accurate Report

            According to Section 4 of the act, there can be no contempt of court proceedings against the media when the publication of the report of the judicial proceedings is fair and accurate, subject to section 7.[9] Furthermore Section 5 of the act allows a fair criticism of any case which has been heard and decided. If found guilty of contempt of court, the punishment can be a simple imprisonment for a term which may extend to six months or a fine which may extent to two thousand rupees or both.[10] The reason behind inclusion of fair criticism is that justice should be seen to be done and should be open to scrutiny.

In the landmark case of Ram Dayal v. State of UP[11], the Supreme Court laid the test to judge whether a particular publication is fair and reasonable. It stated that if the criticism is likely to hinder the administration of justice or threaten the confidence of public in the court of justice, the criticism shall not be considered as fair and accurate.

The Press Council of India

The Press Council of India has laid down several guidelines for the functioning of print media. The print media is expected to follow these guidelines and conform to the ethics of journalism. However the interesting point here is that there is no provision which lets the Press Council to enforce compliance of the guidelines and ethics. If such a provision is laid down, it would lead to a shift towards fair and responsible journalism.

CONCLUSION

          The public can be a part of the democracy only when there is transparency in the functioning of every pillar. Thus except for certain cases openness should be the order of the day for the judiciary as its strength lies in the confidence of people. On the other hand the media, also called as the fourth estate, should work with utmost responsibility to march towards the goal of successful democracy. It should keep in mind that its freedom of speech and expression is not only for its own benefit but for the benefit of the whole nation. Rare conflict of interest between the judiciary and the media is common however lack of respect between the two can hamper the administration of justice and truth.

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