On The Law Commission Consultation

IN LATE MAY, soon after the results of the general election were announced, the Law Commission of India released a consultation paper on media laws, and invited comments from members of the media and the general public. Twenty law commissions have been constituted since Independence, but this is the first time media laws have been taken up substantively. One might have expected the primary objective of this exercise to be a discussion on the protection of press freedom—especially since India currently ranks an abysmal 140th of the 180 countries in the 2014 World Press Freedom Index. However, the terms of consultation spelled out in the paper, and the discussions the commission has organised with various stakeholders, have focused largely on just one aspect of media laws—that of regulating the industry—while ignoring the important issue of their implications for press freedom.

The Indian legal system is a complex mesh of rules and regulations, many of which run contrary to the interests of a free press. Governments can control the media by either directly taking up a cause in the realm of thoughts and ideas, or by muzzling creators or disseminators of information or opinion with bureaucratic and economic stipulations that make them—whether organisations or individuals—financially and operationally vulnerable.

In the first category of methods of control are the myriad Indian laws that pertain to subjective issues such as obscenity, blasphemy, communal harmony, sedition, and more. These are legitimate concerns, and we need sound regulatory mechanisms to address instances where the media errs on these issues. However, there is always some arbitrariness and ambiguity in interpreting these laws, and this can allow government agencies to stifle, or at the least harass, the media. Furthermore, the current legal framework bestows powers to initiate action onto a large number of government agencies, and at multiple organisational levels, rendering the media vulnerable to the whims and fancies of concerned officials.

Take, for instance, the matter of obscenity. The Indian Penal Code, 1860, makes the sale or distribution of obscene material a criminal offence. The Indecent Representation of Women (Prohibition) Act, 1986, and the Young Persons (Harmful Publications) Act, 1956, make the contravention of their provisions punishable with imprisonment and fines. The Post Office Act, 1898, the Customs Act, 1962, the Dramatic Performances Act, 1876, and the Cinematograph Act, 1952, all empower the government to place restrictions on the media. The Cable Television (Networks and Regulation) Act, 1995, allows local magistrates and police commissioners to initiate action against telecasts featuring obscene material. But what is the standard for judging obscenity? And to what extent should law-enforcement agencies take immediate action? These remain sensitive concerns. Since some of these laws have implications under criminal law, a discussion on protecting the media against their misuse is imperative. It is unfortunate that, in spite of this, the commission has given a conversation on this matter a miss.

In the second category are laws that can be used to interfere with the media’s work under the guise of enforcing compliance with statutory and economic rules. One such provision is the Wage Board Act, a relic of the socialist era by which the government fixed remuneration for employees of newspapers and news agencies. Various Supreme Court judgments have upheld the recommendations of wage boards, but publishers have repeatedly and unsuccessfully challenged the act’s constitutionality, arguing that it is a tool of fiscal control over the press. This remains a deeply contentious issue with publishers.

Besides wage board regulations, legislation such as the Press and Registration of Books Act, 1867, and institutions such as the Telecom Regulatory Authority of India, lay down rules that can, arguably, place unwarranted restrictions on the media. (Recent guidelines from the TRAI that restrict advertising time on television channels to 12 minutes per hour are a case in point. Broadcasters hold that this will hit their finances, and therefore make them fiscally vulnerable. The matter is pending in the Delhi High Court.) This is not to say that the media should not be subject to statutory rules of any kind. There should, however, at least be consultation on media laws, which should foster a conversation about reviewing the statutory framework governing the Indian media.

The law commission’s paper sought responses on ten issues, including “Methods of Regulation,” “Paid News,” “Opinion Polls,” “Cross Media Ownership,” social media and the Information Technology Act, and trial by media. Most of the commission’s 27 questions invited suggestions on ways to regulate the media. Only on matters of defamation and contempt of court did the paper explicitly seek ideas on protecting the rights of journalists and media organisations.

To be fair, these are all important issues that need to be debated to ensure that we have a responsible press. However, media regulation and media freedom can at times be opposing forces, and a focus on one over the other is liable to skew the industry. In this respect, it is not the law commission alone that is at fault. Media organisations, journalists and advocacy groups should also be held responsible if such an imbalance comes about. In a democracy we expect the government to enact responsible legislation to protect our rights to free expression. However, if the government does not act in the public’s best interest on these fronts, or adopts a distorted approach, it is the duty of the media to take on a more activist role in order to correct course. Towards this end, media organisations’ failure to raise concerns over existing fetters on press freedom might be taken for implicit acceptance of them.