Media is a collective communication tool which includes publishing, broadcasting and the Internet through several mediums like radio, television, newspaper etc. Among all other duties the main duty of media is to create sense of awareness among general public regarding the democratic and social duties and responsibilities. Media is termed as the “fourth pillar” of democracy and it makes accountable the other three pillars of democracy i.e. “executive, legislature and judiciary”. It is expected that the information provided by media will be impartial and unbiased and media should transmit information to us rather than making personal views or opinions on that subject because media has utter prominence over the minds of public and public get easily influenced by the media streaming. But sometimes media misuses its power by making it a concoction of news, information and own opinions, which is often termed as media trial.[1]

 What does that trial mean?-

According to Oxford English Dictionary, “trial” means, a formal examination of evidence by judge, typically before a jury, in order to decide guilt in a case of criminal or civil proceedings. This definition clearly reflect that media is not eligible enough to conduct a trial.

In this exponentially evolving competitive market, the media often misconstrues and misrepresents the original facts and engages in tabloid journalism to get high target rating point (TRP) and to grab the attention of the public. There are many incidences and high profile cases where media conducts a trial of an accused even before the verdict is passed by the court. Thus it infuriated the atmosphere around, which makes public reckless about their opinions and makes the accused look like guilty in public perception. [2]This is the sole reason why Media trial is not accepted and appreciated in a democratic society.

The Delhi High Court in a suo motu case observed that in our slow judicial system of conducting trials, the accused many a time is subjected to media trial and there is no legal remedy to it. And in such case no one claims any relief to this by “injunction” or for “damages”. Here the Court has no other option to protect the aggrieved individual’s rights and reputation from except” by being more vigilant and pro-active. We know that “Right to fair trial” in a “criminal prosecution” is impliedly mentioned under the “right to life” guaranteed by Article 21 of the Constitution of India. It is proven that if the criminal proceedings are not just and fair, then judicial fairness cannot be achieved.

Fair trial involves independent judges, public hearing, the presumption of innocence, right to counsel and many other factors.[3] The proceedings of a case are expected to be conducted by impartial, independent and competent Judges to ensure the fair trial. Public hearing is also included under the concept of fair trial.

Role of Media in Democratic Society–

As per the Constitution of India “right to know” falls under fundamental principle. Although the freedom of press is not explicitly mentioned anywhere but the Supreme Court of India explained through cases that this “right to know” forms the base of the “freedom of the press”. The Supreme Court declared that the primary objective of the press is to provide all-inclusive and exhaustive information on all kinds of political, social, economic and cultural situations in the country. It also stated that the primary motive of media in a democracy will be promoting transparency.[4]

Media and Freedom of Speech and Expression–

As it is said earlier that freedom of media is not deliberately mentioned anywhere in the Part Ⅲ of the Indian Constitution which contains fundamental rights and freedoms. But it finds its root to Article 19 (1) (a) of the Constitution of India which validates “freedom of speech and expression”.

Why Is Freedom of Media/ Press Not Markedly Stated in Indian Constitution?

To answer this question we have to go back to the earlier debates of the Constituent Assembly, where Dr. B. R. Ambedkar said that Press does not enjoy any special rights which are not devoted to individual citizens to handle and operate in their regular lives. The editor of a press or the manager just exercises the right of the expression, and this the main reason why freedom of press is not specially mentioned in the Constitution.[5]

 Freedom of media is not unconditional and absolute and like any other platform, free press is also restricted with the shackled of some limitations stated in Article 19 (2) of the Constitution and those “limits” flow from the “right to privacy”, “right to reputation”, the law of “contempt of court” etc. So, the press cannot use its “freedom of speech and expression” as an excuse to infringe anyone’s privacy and it has to be accountable to Court if it excoriates a person in a libelous manner. In the same way, the press should not indulge in “contempt of court” by taking up parallel trials when a trial is going on before a court of law. Media does not have a clear idea about the rules and regulations of citing evidence and does not know which evidences are enough to declare an accused as a convict.

There is a famous Latin maxim: Audi alteram partem, which means no side of a case will be unheard and both parties will be given a chance to defend themselves but while the media is just concerned about their prime time breaking news, an accused doesn’t get the chance to speak for himself usually and it hampers the principle of natural justice.

Starting from the age of “Bengal Gazette”, “Sambad Koumudi”, “Yugantar”, “Amritabajar Patrika” journalism merged as a noble profession where journalists used to work with braveness, integrity and impartially to serve the nation but in this current era of obtaining highest TRP, accused often goes through mental turmoil, his reputation gets shattered and the whole family suffers with him/her too. And thus the “media trial” has moved to “media verdict” which clearly indicates the misuse of freedom of speech.

An Analysis of The Effect of Media Trial on Some Prominent Cases and Developments In Recent Times

 JESSICA LAL MURDER CASE –

Facts of the case:

On April 29, 1999; a model named Jessica Lal was murdered. On a Thursday night when Jessica Lal was working as a “bartender” at the “Tamarind Court” restaurant situated in Delhi was shot by a gun which resulted in her death. Her friend and an actor Shayan Munshi was also working with her. Manu Sharma, who is the son of Minister Venod Sharma, ordered a drink in that bar, to which Jessica Lal refused. After being offered of Rs. 1000 for a single drink, Jessica refused to serve again. After this, Manu Sharma took out his revolver fired at the ceiling and then at her. She was taken to the hospital immediately but died after some time due to excessive blood loss. Manu Sharma swiftly went out of the bar after shooting Jessica. Though many witnesses pointed Sharma as the culprit, Police could not arrest Manu Sharma immediately because he was hidden with the help of his friends and also destroyed the prime evidence i.e. revolver. But to the great shock, when the trial finally began in the month of August, 1999; the main witnesses Shayan Munshi became hostile. Afterwards other witnesses also turned indifferent to the case by the year 2000 and the trial court released Manu Sharma because the police could not recover the gun used in the act as the main event and the ballistic report was also not submitted.

Role of media:

The media actively sincerely started to publish and broadcast the issue and also directly claimed that Manu Sharma’s father was influencing the police by misusing his power. The High Court of New Delhi in December, 2006, declared Sharma. In the meanwhile, it was revealed by a sting operation conducted by a newspaper “TEHELKA” that Venod Sharma bribed Shayan Munshi to keep them away from the case. The channels also inveigled the common public throughout the country to send texts and mails concerning their views about the trial and media started a parallel trial. Manu Sharma’s defense lawyer Ram Jethmalani argued in the Supreme Court that the media scorned and maligned his client “before and during the proceedings”.[6]

The Court admitted that although the accused was getting influenced due to the remarks of “trial by media” regardless of the fact that the impact was not spreaded to a great extent.[7] The Court also held that in this media is not affecting the accused as such but if this role of media is not regulated and restricted in a positive boundary then it may lead to a serious risk in future causing “contempt of court” where the media will not even set back from forging false evidences.

So the law and governance need to check that the “trial by media” does not act as a hindrance to fair investigation and does not infringe the right of defense of the accused.[8]

NOIDA DOUBLE MURDER CASE

Facts of the case:

This case is well known by another name i.e. Aarushi Talwar murder case where a fourteen-year-old girl Aarushi Talwar and a forty-five-year-old Hemraj Baanjade was murdered and the case is still unsolved. Aarushi was the only child of Dr. Rajesh Talwar and Dr. Nupur Talwar and Hemraj was their domestic worker who lived with them. On 16 May 2008, Aarushi’s parents found her body and the main accused of the event, servant Hemraj who was missing. But on the next day itself, Hemraj was found dead on the terrace. Failure to secure the crime scene brought heavy criticism to the police.

When Hemraj was found dead, the police accused Rajesh Talwar as the prime suspect because they thought that Rajesh has killed both of them after seeing them in a “compromising” position.

Afterwards the case was transferred to the CBI, which initially declared the parents innocent and suspected Krishna Thadarai, the compounder in Rajesh Talwar’s clinic, Rajkumar, the domestic help of Talwar’s friends based on the narcotest but they were also released due to scarcity of evidence. In 2009 again, the case was referred to a new CBI team but they proposed to close it due to the same reason.

Rajesh Talwar was contemplated as the sole suspect due to the circumstantial evidence and the CBI Court declared the parents guilty and they were sentenced to life imprisonment. In 2017, Allahabad High Court acquitted the Talwar couple giving them benefit of doubt. [9]

Role of media:

Afterwards this, the print and electronic media started their outcry by encumbering all the newspapers and channels with the news of Aarushi Talwar’s murder. It was very unfortunate to see the insensitivity of media in reporting this case. The dramatizations in several channels objectified and defamed a dead minor girl and showed simulating objectionable scenes of Aarushi and Hemraj together and Rajesh coming with a golf club and hitting them. All such acts of media completely distraught the reputation of the dead girl, her parents and all those people whose names were mentioned in several shows.[10]

Aggrieved and shocked to see the role played by media here, Dr. Surat Singh, an advocate, filed a PIL and the Supreme Court took this very seriously. The Court reprimanded both print and electronic media to be aware of the prejudicial steps they are taking because it was meddling with the “right to defence of the accused”.

The Supreme Court ordered restraint on “published material which may interfere with the investigation process in respect of all cases.” 104 And this whole event was strongly lambasted by many as “trial by media”.[11]

SUNANDA PUSHKAR DEATH CASE –

Facts of the case:

Sunanda Pushkar, the wife of renowned politician Shashi Tharoor, was found dead in a hotel at Delhi on January 17, 2014. After recovering the body, Delhi police informed Shashi Tharoor about the death. In the initial reports claimed that she committed suicide but later on it was found out that there were also injury marks on the body and ultimately the autopsy report depicted drugs were consumed in high quantity and it resulted into death. By October 2014, the medical team concluded that the death was due to poisoning. After receiving the final report the police filed an FIR for this murder case against an anonymous person on January, 2015.[12]

Role of media:

On the very same day of the death of Sunanda Pushkar, without any delay, the media reached the scene and started its trial and when the Delhi Police Commissioner refused to label Tharoor as the prime suspect, the media declared Shashi Tharoor as the murderer. Some of the media houses were using confidential medical reports and some forged statement made by any distant cousin of Pushkar claiming Tharoor was the murderer. [13]Here the journalists were playing almost every part like that of an autopsy surgeon, cop, scientist, investigator, forensic expert to validate their stance.

 In 2017, after suffering from such media trial, Shashi Tharoor filed a defamation suit in Delhi High Court against a well known media house. The Court held that the media houses and journalists are free to state facts and information related to the investigation, maintaining the balance between media trial and freedom of expression but cannot declare Shashi Tharoor to be the murderer.109 The Court also declared that after a criminal investigation starts, the media needs to be more cautious and sensitive and the “press” cannot declare anyone convict or insinuate anyone guilty or make any kind of unsubstantiated claims.[14]

TARUN TEJPAL SEXUAL ASSAULT CASE

Facts of the case:

In 2017, the chief editor of “Tehelka” Mr. Tarun Tejpal was accused of raping by a woman journalist who worked with Tejpal and accused him of sexually assaulting her in an elevator in a five-star hotel in Goa during conference named “Think Fest” which was organized by “Tehelka”. In June 2017, a trial court in Goa restricted the publication of the court proceedings and it held that the proceedings will take place in-camera.

Role of media:

On 28 May 2018, a famous news channel broadcasted CCTV footage in prime time show, clearly depicting Tarun Tejpal and the complainant together. The channel did not comprehend for a sector that this kind of move can infringe the “rights of the accused” or the “privacy of the complainant”. It is one of the various evidences in the trial and to determine any party’s guilt or innocence from that tape was a gross guesswork.

Supreme Court lawyer Rebecca Mammen responded that such intentional violation of some rights and duties by media can manipulate people’s mind negatively and she also stated that Section 327 (2) and (3) of The Code of Criminal Procedure commends to conduct Rape trials in camera. So it shall not be lawful for any person to print or publish any matter in relation to that matter, except with the previous permission of the court of public viewing of the footage.[15]

After a lot of criticism, the media house deleted all the debates, discussions and other online videos from its website. Though all these actions of media made it almost impossible to run the trial smoothly and it caused havoc damage to reputation the parties of the case held in society.  Conclusion

From all the cases discussed above, not only judicial approach is clear but it is also clear that media has huge power to influence the subconscious thinking and perception power of general public and it is clear from the following percentage statistics.

 There are over 100,000 publications registered with the Registrar of Newspapers for India with a combined circulation of over 240 million copies in the whole country. And almost 87% of the population of India is connected through electronic media.

We are sure that journalism, as a whole, is not decaying and there are ample chances to direct it in the right way. In the recent past, some big frauds and criminal rackets came to notice due to the efforts of media only. But the media needs to keep in mind that the freedom it is enjoying, has to be utilized for greater public good rather than clouding their perception and thoughts with the target of snagging utmost attention on news items which may not be of public interest, only for the purpose of excelling in the competition to be on the top.

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An ombudsman is an official who is appointed by the Government to investigate individual’s complaints against a company, financial institutions, businesses, organization, specially a government department or public entities and attempts to resolve the raised concerns either by process of mediation or giving recommendations.

To discuss the ombudsman in India, we need to describe Lokpal and Lokyukta.

§  The Lokpal and Lokayukta Act, 2013 was enacted to establish Lokpal for the Union and Lokayukta for States to perform the functions of Ombudsman in India.[1]

What is the need for such institutions?

§  In our country corruption is the main reason of maladministration. The public organizations are slow and do not have efficiency just because of the corruption. The anti-corruption agencies are mostly not independent. The CBI has been termed as a “caged parrot”, which speaks in its master’s voice only.

§  Many of these agencies exist only for giving recommendations, which are not followed most of the times.

§  There is no superior authority to check the functionality of these institutions. Moreover the employees are also not accountable for their faults.

Here Lokpal was a very necessary way forward to stop all these hazards and perils.

Historical Backdrop of Institution of Ombudsman:

§  In 1809, the institution of ombudsman was established conventionally for the first time in Sweden and after Second World War, it emerged in its true sense.

§  In India, law minister Ashok Kumar Sen first proposed the notion of constitutional ombudsman was in early 1960s and the terms Lokpal and Lokayukta were brainstormed by Dr. L. M. Singhvi.

§  In 1968, Lokpal bill was passed in Lok Sabha but terminated with the dissolution of Lok Sabha and it was voided eight times afterwards till 2011.

§  In 2002, Chairman of review commission M.N. Venkatachaliah asked for the assignation of the Lokpal and Lokayuktas; and he proposed that Prime Minister of India should not be included with the purview of its authority.

§  The movement by Anna Hazare: “India Against Corruption movement”; created pressure zone on the United Progressive Alliance (UPA) government at the Centre and finally in 2013, both the houses of Parliament passed the Lokpal and Lokayuktas Bill.

§  The bill became the act when it got the assent on 1 January 2014 from Hon’ble President Pranab Mukherjee and came into effect from 16 January of the same year.[2]

Structure of Lokpal Body:

§  The Lokpal body consists of one chairperson and a maximum of 8 members where half will be judicial members and other half will be from SC/ ST/ OBC/ Minorities class and women. The President appoints the members with the recommendations of a selection committee and search panel of minimum 8 persons.

§  The former Chief Justice of India or the former Judge of Supreme Court or a renowned person with having specific knowledge and expertise of minimum 25 years in the field relating to anti-corruption policy, public administration, diligence and surveillance, law and management etc; will be eligible to become Chairman of Lokpal. The term of Chairman’s office is 5 years or till the age of 70 years whichever is earlier.

§  The selection committee is composed of the Prime Minister who is the Chairperson; Speaker of Lok Sabha, Leader of Opposition in Lok Sabha,  Chief Justice of India or a Judge nominated by him/her and One eminent jurist..

Authority and Jurisdiction of Lokpal :

§  Lokpal have the power to check upon Prime Minister, Ministers, members of Parliament, Groups A, B, C and D officers and officials of Central Government due to any kind of allegation except the ones on corruption relating to security, sovereignty, integrity of India, the public order, international friendly relations, atomic energy and space.

§  Although the Lokpal Ministers and MPs in any matter discussed in Parliament or a vote given there.

§  Its jurisdiction also falls on someone who is or has been director/ manager/ secretary of any organization or society established by central act or any other body partially or wholly financed or/ and controlled by central government.

§  It also acts as supervisor and superintendent over CBI & it can also give orders and directs to CBI for betterment of its function.

§  The powers of a civil court have been imposed on the Inquiry Wing of the Lokpal. So it can confiscate assets, receipts and benefits arisen or got hold of by corrupt measures, in certain special circumstances.

§  Lokpal has the power to endorse for termination of office, transfer and debarment of public servant connected with allegation of corruption.

Limitations of Jurisdiction of Lokpal :

As all other organizations in world Lokpal body also have its own loopholes and drawbacks.

§  The Lokpal act extolled to appoint a Lokayukta within a year after it came in force. But till date only 16 states have successfully built up the Lokayukta. There are no restrictions and guidelines regarding the appointment of Lokayukta and these have been left completely on the separate rules and regulations of respective States.

§  Though Lokpal was formed to keep the public institutions isolated from political and other kinds of filthy corruption but Lokpal cannot be perceived outside of political influence as the members of the appointing committee itself forms with the members from political parties.

§  The clauses of the membership of Lokpal can be tampered with easily. It can be manipulated because there is no specific criterion to decide who is an ‘eminent jurist’ or ‘a person of integrity’ and there is a chance that deserving candidate for this position is not chosen due to nepotism or other reason.

§  The biggest lacuna of this system is that supreme judiciary is excluded from the purview of the Lokpal.

§  There is no proper system of proceedings to appeal against the Lokpal if anyone is not satisfied with its decision, as of now.

§  There is a restriction in the time limit of complaining. Even if there is any valid reason of not complaining, the complaint against the alleged incident of corruption cannot be cataloged after a period of seven years from the date of the offence committed which is mentioned in the complaint letter.[3]

Suggestions to Overcome the Limitations :

As per my view, each and every flaw in the system can be meted out with full proof planning and in this case my suggestion for better administration of ombudsman will be:

§  Lokpal and Lokayukta should be independent monetarily, administratively and legally, of those over whom they have the jurisdiction to investigate and prosecute.

§  The process of appointment of Lokpal and Lokayukta must not be vague but transparent with proper set of guidelines of whoever can be appointed strictly in various posts in accordance with their merit and experience.

§  Several dispersed and decentralized or regional institutions should be there with efficient answerability mechanism to avoid the intensification of too much power on anyone, any one institution or organization.

Except the Lokpal and Lokyukta Act the other kind of ombudsman authority in India is conducted through Banking Ombudsman Scheme :

This scheme is a prompt and overpriced forum for customers of bank for settlement of complaints relating to certain services rendered by banks, which was introduced under the Banking Regulation Act of 1949 by RBI with effect from 1995, through Banking Ombudsman Scheme 2006.

·         The Banking Ombudsman is an official, who is appointed by the Reserve Bank of India to recompense customer complaints related to the lacunae of the services provided by bank.

·         Scheduled Commercial Banks, Primary Co-operative Banks and Regional Rural Banks are subjected to this scheme.

·         If any aggrieved person does not get reply from the bank itself within one month after the receipt of the complaint or if it gets overturned by the bank, complaint can be filed directly before the Banking Ombudsman.

·         Complaints can be filed on online platform and it is not required to file a direct physical complaint.

Complaints can be filed on the following matters:

·         Inconsistency in the prescribed working hours;

·         If bank is refusing to open new deposit accounts without providing valid legal reason to refuse;

·         If bank is refusing to close any customer’s account without any valid reason.

·         If any excess service charge is incumbent on customers without sending them prior notice.

·          If recovery agents by banks are acting beyond the guidelines provided by RBI.[4]

The Reserve Bank of India issued an ombudsman scheme for non-banking finance companies (NBFCs) too. 

Who will be appointed as the ombudsman inNBFCs :

An RBI officer who is not below the rank of general manager will be appointed as the ombudsman with certain territorial jurisdiction.

·      Tenure of office- the maximum tenure of the office of ombudsman is three years but it can be lowered down by the regulator, who appoints the ombudsman as per the situation requires

·      The complaint procedure in NBFC is same as that of the procedure followed in bank.

·      Compensation:

The ombudsman may award compensation not more than one hundred thousand rupees to the complainant, to neutralize the loss of time, cost incurred, mental agony suffered by the complainant.[5]

Conclusion:

Lastly it is very important to know that the Ombudsman authority has been imposed with huge power and responsibilities in every sense but the Lokpal body and the Banking ombudsman scheme, as the case may be, need to be more accountable and transparent for efficient performance and supervision and the controlling as well as the appointment set up should be more strict to fulfill the purpose for which these were formed.

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Intellectual property is a broad set of intangible assets and it is entitled to be protected with the view that certain products of human intellect should be provided with the same protective rights that apply to physical property or tangible assets. Intellectual property rights refer to the general term for the assignment of property rights through patents, copyrights and trademarks etc. for a limited period.

To understand the value and importance of IPR, we should know the theories behind its origin and the same are discussed below.

1.      The Natural Rights Theory

The main justification behind this theory is that everyone has a right to consider his/ her ideas as natural property right by the reason that the creation originates from the effort, originality and inventiveness of the creator. The backbone of this theory is based on famous philosopher John Locke’s idea that an author has a natural right over his creation applying his intellectual labour. In this sense there is no difference between intellectual property and the traditional tangible property and there is no difference between the rights of the owners of these two kinds of properties, such as right to enjoy the property, to restrict others from using the property and the right to transfer the ownership.

Criticism of the theory:

The primary criticisms of this theory are,

·         This theory does not deal with temporal limitation of IPR. The usage of IPR is time bound, which means that after expiration a certain period of time, the IPR protected objects will be available in public domain. But the Lockean theory talks about unlimited term of ownership of tangible properties.

·         The Lockean Proviso restrains an innovator from owning an abstract idea which can affect subsequent innovators. Example- if a person is given the right to ownership in the unique idea of preparing pulpy orange juice, then the remaining innovators are left with nominal scope of discovery in the same field and thus prevent them from inventing a new technique for extracting pulpy orange juice. This right of ownership will violate Lockean Principle of Equity and Creative Liberty.

·         According to this theory, an appropriator cannot enrapture all the natural resources of the world. Such as, if anyone gets the ownership of his idea of producing milk from soybeans, the entire market of producing soymilk will be cornered down by the thinker. So as per Lockean thought, innovators are bolted from conquering the worldwide market with their abstract ideas. [1]

2.      The Utilitarian Theory / Incentive Theory

The word “utilitarian” means ‘social welfare’ and this theory was championed by great economists Bentham and Mill with the objective of making every policy universal in the sense of attaining the greatest good for the greatest number.

The primary essence of this theory is that the industrial progress and cultural goods can create a better and important economic impact on the society. Consequently, to fill the need of promoting the inventions and creations, there should be nominal certification that the outcome will be superior as compared to the expenses incurred for his work.

Likewise as the name suggests, the incentive theory validates the duty of society to respect the innovators and their right to ownership because it brings profit for the whole society.

Criticism of the theory

The main criticism of this theory is here the utility gains from the impetus of a unique innovation are neutralized against the losses incurred due to exclusive ownership. Thus the question arises if really the benefits of IPR can be weighed against the casualties or not.[2]

3.      The Social Planning Theory

In this theory intellectual property rights are considered particularly as a part of general property laws  and it must be shaped cultivate the attainment of a fair and attractive culture. 

Criticism of the theory

This approach is almost similar to the utilitarian theory in its orientation, but dissimilar in its willingness to dispose perception of a desirable society richer than the apprehension of social welfare deployed by utilitarians.[3]

4.      The Ethic & Reward Theory

This theory rationalizes the exclusive rights of intellectual property from moralistic and ethical aspect. The concept of ethic requires an equitable and proportional contribution from the side of creator or innovator who has invented something for the social utility. Here the IPR are viewed as “an expression of acknowledgement and indebtedness to an author for doing more than society expects or feels that they are obliged to do”.

With this reward of legal rights, others are excluded from using the work or the methodology in certain ways when the work is publicly available. On this perception patents, copyright works and designs are justified under reward theory, but trade secrets are not protected because here the dissemination of information in the public is restricted.

Criticism of the theory

·         However, this theory suggests that the benefit from such right can be obtained by the innovator in the initial years but if the innovators deserve the same right or not is questioned too under this theory.

·         Another drawback of this theory is its limitation in protecting the traditional knowledge because the old indigeneous communities received no reward for their rare invention of traditional methods and art. A person who registered a patent based on traditional knowledge would receive the full reward, not the original holders of the knowledge.[4]

5.      The Personhood Theory

The greatest philosophers of all times, Kant and Hegel are the profounder of the theory which claims that intellectual rights permit and protect the development of the personality, extending to material things.

As per this theory, the personality of everyone frames itself up in the environment of work, innovation, ideas and creation. The augmentation of the personality is deep seated to our property rights.

Under this theory personality and property law are compared in the field of copyright ( because the same way tangible assets are protected, the creative artistic works are also viewed as asset and get protected). After seeing the conflicting labour theory of Locke and Hegel’s personality or spiritual theory may not seem to be the best approach, since Locke’s theory approaches property as serving the personality, while Hegel’s theory perceives property as the – apotheosis of personality.

Criticism of the theory

When the creation is done, the work is independent from its creator but dependent on the public domain. As a matter of fact, the creation or work gathers the importance because others adheres importance to it.[5]

6.      Moral Desert Theory

According to Locke, “every man has a property in his own person”, i.e. the fruit of one man’s labour belongs to him only. The intellectual property rights also follow the same pattern because the innovator deserves the right because of his intellectual and physical labour.

This theory compensates a worker’s performance for his “effort, ability, persistence, industriousness, luck, time spent, the difficulty, danger of the work, leadership” etc. But this fails to  give any absolute value of the work like, “inherent worth” of labour, or a “just price” for labour.

Criticism of the theory

Although Legget has pointed out that even if we grant an exclusive right to a specific idea, there is no process of being sure or assuming that someone else did not inculcate the same thought or idea. Thus these rights can only be vindicated if they are applied in the manner that the individual rights are protected without infringing other’s right.[6]

7.      Economic Theory

Economic theory of Intellectual property rights is directly related to its value in market economy. For intellectual property, an incentive must be created to overcome the losses and market failure because every time the innovators loss a huge amount of money due to high initial creation costs and marginal distribution costs of intellectual products.

Criticism of the theory

The contrasting view point of this theory is that there is no particlular ground to believe only property rights can create this incentive. Often the innovators are not the real owners of the property rights, and even after incentive is given, the question still remains as how much incentive is enough to secure the property rights. As far as the tangible property is concerned, it is argued that property laws are used to allot limited resources in the competitive market and without proper safeguard of property rights, suppliers would not supply to the market even if there is chance to obtain high profits. This criticism is based on free rider principle, which says opportunists should not be allowed to derive gains from where they have not sown i.e. contributed , otherwise it would create undesirable monopolies. This is the sole reason why limited durations imparted on intellectual property monopolies.[7]

Conclusion

The meticulous discussion on the theories of IPR through this article, has proved why intellectual property is compared with tangible assets and why the rights for such property should be conserved to protect the inventors, brands as well as the society as a whole.

The post Theories of Intellectual Property Rights appeared first on Legal Desire Media and Insights.

-Justice PN Prakash

What is Freedom of Media and Hoe It Has Come into Effect

 Media is considered as forth pillar of democracy and it is well established that if media freely exchanges its ideas, information and knowledge, people will be able to form their own idea and will question the decisions of government logically.

During the pre-independence period, Indian Press was subject to several shackles by the British authority. Vernacular Press Act, 1878; Indian Press Act, 1910 & Indian Press (Emergency) Act, 1931 etc were used in impeding the growth of press. After 1947, such principles changed and freedom of press was substantiated.

The freedom of media is drafted impliedly under Article 19(1) (a) of the Constitution, and under Article 19(2), the limitations to this freedom are stating that no one can publish anything which goes against the provisions of 19(2).

Reasonable Grounds of Restriction under Article 19(2):

·         Friendly relations with foreign states and Security of State–

Saving the fair and just criticism of foreign political ideology, this ground is placed as restriction on the “freedom of speech and expression” so that the diplomatic relation between two countries is not maligned and any internal or external encroachment does not take place. Otherwise it will be a reason of discomfiture for India.

·         Public Order –

When in the case of Romesh Thappar v. State of Madras, the Court held that minimal fissure in the public order cannot restrict the “freedom of speech and expression” and restrictions can be imposed only on the grounds mentioned under Article 19 (2) of the Indian Constitution, then The Constitution (First Amendment) Act, 1951, added this ground of restriction.

·         Decency or morality:

There is no specific definition of the decency or morality in law but it has greater ambit than the term “sexual morality”. The meanings of such terms change with time and vary with the societal norms. This ground restricts any speech and publication degrading the public morals.

·         Contempt of Court:

Both the Supreme Court and High Courts are entrusted with powers under Articles 129 and 215 of the Constitution of India respectively to punish its contempt. The main idea behind the Contempt of Courts Act, 1971 is that judicial system and respected Judges cannot be criticized if it is not for greater public good or if it is not hindering with the fair delivery of justice.

·         Defamation:

Covered under Section 499 of Indian Penal Code, 1860; demotion is held as a ground of restriction because according to the Indian Constitution, the “freedom of speech and expression” cannot infringe “right to reputation” of any citizen.

·         Incitement of an offence:

According to the General Clauses Act, “offence” means, a breach of law or rule, which mainly stands as illegal act under the law of the land. The Constitution of India does not allow anyone misusing the “freedom of speech and expression” to agitate and provoke anyone to commit any offence/ crime.

·         Integrity and Sovereignty of India:

The Constitution (Sixth Amendment) Act, 1963 added this extra ground of restriction under Article 19(2).[1]

Case Laws Supporting Freedom of Media:

Sakal Paper (P) Ltd., And Others v. Union of India[2]

As per the Newspaper (Price and Page) Act, 1956 Central Government could regulate the prices of newspapers as per their maximum pages and size and could also regulate the allocation of space for advertising matters. The petitioners had to increase the price of their newspaper if they wanted to increase the page and vice versa.

The petitioners challenged the order as it was direct transgression from the freedom and liberty of the press since its endorsement indicated mandatory cutting down the existing number of pages or raising the price.

The Court held that the Act was void, since it was antithetical to Article 19(1) (a) of the Constitution and was not eligible to be covered under the restrictions compiled under Article 19 (2).

R. Rajagopal v. State of T.N[3]

 The Court upheld that there is no express law or provision which empowers the government to apply “prior restraint” on any libelous publications against the officials but later on, if it is proved that such publication was based on false facts then the authority can ask for compensation or take action against this damage.

In Brij Bhusan v. State of Delhi[4]

The Chief Commissioner of Delhi, issued an order as per Section 7 of the East Punjab Safety Act, 1949, against the “printer”, “publisher” and “editor” of the magazine named “Organiser”, asking them to submit all second copies of articles related to India- Pakistan communalism issue. But Court nullified the order stating that, this order violates the “freedom of speech and expression” and upheld that the correspondents of the journals are allowed to give their own perspective on any sensational news of country.

Romesh Thappar v. State of Madras[5]

Here the Government of Madras, prohibited the circulation of a specific journal named “Cross Road” in Madras under the “Maintenance of Public Order Act, 1949”. The Court held state order invalid stopping the circulation of journal clearly inhibits the “freedom of propagation of ideas” and this restriction was invalidated because it was not authorized under Article 19 (2) of the Indian Constitution.

Case Laws Where the Power of Media Is Subdued by Court:

Rajendra Sail v. M. P. High Court Bar Association and Others[6]

In the murder trial of a trade union leader, Shankar Guha Niyogi, the accused were sentenced to life imprisonment except one who was awarded death sentence. But after appealing against the trial court judgement, the High Court acquitted the accused.

Based on the comment made by Rajendra K Sail, President of Chhattisgarh People’s Union for Civil Liberties (PUCL), a news report was published in newspaper ‘Hitavada’ on 4th July, 1998, stating the court’s decision as “rubbish”. The inherent conclusion of the news report was that a Judge who was on verge of retirement should not have been conferred with the responsibility of dealing with such a crucial case. This news report was considered as contempt of court.

It was inferred that though media is entitled to criticize, analyze any judicial act or the judgment for public good in a somber way but it should not cast any salacious remark or any personal bias to the judge.

The Case of Privacy:

The Supreme Court’s landmark right to privacy order reevaluated the boundaries on the freedom of the press when the Madras High Court restrained a media house from publishing articles concerning the private life of Kanimozhi Karunanidhi. 

It was determined that no one can impose any blanket injunction (An injunction issued against multiple activities, or against multiple parties with respect to the same activity, or both) on the right of press to publish, the Court accentuated that the media “cannot take the excuse of public interest to publish anything which seem interesting before them”. Justice Subramaniam remarked on this aspect, “all matters in which the public takes interest may not be in public interest.”[7]

Control on Commercial Advertisement:

Hamdard Dawakhana (Waqf) Lal v. Union of India and Others[8]

The Supreme Court considered the question of whether advertisements are also protected under Article 19(1)(a). This is a landmark case where Supreme Court started to control the advertisement sector too. The Court stated that original attribute of an advertisement can be decided by the object it is promoting.

Advertisement promoting drugs and commodities cannot claim the protection under Article 19(1) if the sale is not in public interest. And the noteworthy point here is that advertisement is there to make progress in business, so it falls under the head of trade and commerce and cannot be regarded as a part of freedom of speech.

But later in a conflicting judgement of Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, the Supreme Court observed that in some cases the commercial advertisements will be protected under Art. 19(1) (a) of the Constitution, and the right will not be denied merely because it is used by a businessman.

Measures Taken by Several High Courts to Restrict the Media:

·         Investigative journalism house Cobrapost started a documentary titled ‘Operation 136: Part II’ and accused various media houses of being paid news outlets. When Dainik Bhaskar pleaded against this in Delhi High Court, an ex parte interim stay was released on the documentary.[9]

·         In April, 2018, the Patiala House Court restrained media house which was reporting on the investigation in the medical college bribery case registered against former high court judge, Justice IM Quddusi. Because court was of the view that this publication was bound to bring disrepute to the plaintiff, so the restrain was necessary.[10]

·         In August 2018, anticipating that press report will hamper the investigation and trial, the Patna High Court curtailed the media from reporting on the Muzaffarpur Shelter Home case but notwithstanding any point mentioned by Patna HC, Supreme Court requested the media to give impartial and unbiased review and report on the case.

·         The Bangalore City Civil Court took action of passing an interim injunction over forty media houses and social networking sites from publishing any disparaging material against BJP candidate Tejasvi Surya after he filed defamation suit in the civil court after several newspapers made false allegations on his name.[11]

Conclusion

Thus from the above piece, we got to know there are numerous factors which make media partial. Racial, religious, political factors cloud the transparency of media. The news portrayal is not always perfect due to the competition and also due to the general feeling of controlling the viewers i.e. a large percentage of population. To stop this genuine hazard and to make the media more trustworthy the government legislatures should be more effective and strict.

[8] 1960 AIR 554 SCR(2)671

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