Access to Public Information, Content Regulation / Censorship, Licensing / Media Regulation
Esquivel v. Costa Rican Electricity Institute
Closed Expands Expression
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The High Court of Kerala refused to pass any guidelines in relation to the regulation and control of the print and electronic media as requested by the petitioner. The petitioner had claimed that false and scandalizing news published by the media to malign the image of the judiciary, government functionaries, police force and political leaders violated freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. The judges held that judicial precedents clearly indicate that the general framing of guidelines for regulation of the press was not permissible and that there were enough safeguards for the redressal of the petitioner’s grievance under other laws including the Press Council Act, 1978 and Article 19(2) of the Constitution.
The public interest litigation was filed by an Advocate, seeking regulation of print and electronic media to protect the fundamental rights of people including their right to be kept informed about the current social, political, economic, cultural and other important issues, to enable them to understand and form an opinion about the way they are being managed by government and administration. The petitioner contended that many of the media houses published false reports with the intention of creating political and religious polarization.
Certain specific instances pointed out by the petitioner included a gold smuggling case, false news being published by media personnel in respect of COVID-19 patients, steps taken by the Government, death occurring thereunder etc. Various instances in respect of rape cases and other criminal offences were also pointed out by the petitioner. For the same, petitioner sought guidelines incorporating the restrictions as envisaged under Article 19 of the Constitution. Some of directions that the petitioner sought were:
The present case was presided over by the Chief Justice of Kerala High Court S. Manikumar and Justice S.P.Chaly. The central issue whether any guidelines could be framed by the Court in order to regulate and control the activities of the print and electronic media.
The petitioner argued that media trials override the official justice delivery system and interfere with the right to a fair trial of an accused in criminal cases. According to the petitioner, the deliberate planting of lies, false aspersions and the repeated broadcast of news to malign the image of the judiciary, government functionaries, the police force, political leaders including the chief minister and other ministers at will and whims and fancies without factual verification violated constitutional provisions and created hindrances in the discharging of duties by functionaries, go against the rule of law and lead to miscarriages of justice [p. 5]. The petitioner contended that the media violate Article 19(1)(a) of the Indian Constitution by publishing prejudiced opinion with the intention of conveying political agendas. The petitioner further submitted that the propagation of false and scandalizing news by the media causes prejudice in the minds of people violating freedom of expression and the right of the citizens to know the truth [p. 8].
The petitioner claimed that the present acts of the media violated the principle of innocence until proved guilty, created unrest in the community, affected the credibility of the news and caused irreparable damage to the dignity and credibility of certain political personnel [p. 2]. As per the petitioner, these acts have been perpetrated due to a failure of the government to ensure the protection of fundamental rights guaranteed under Articles 19 and 21 of the Constitution, the Indian Penal Code and the Contempt of Courts Act, and various guidelines and judgments enunciated by the Supreme Court [p. 2]. The petitioner argued that the existing legislation is insufficient to tackle the irresponsible acts of the press and media.
While deciding the case, the judges first noted that “under the Indian Constitution, media does not have any specific fundamental right for their freedom of speech and expression unlike the first amendment to the American Constitution where the press has absolute freedom of speech and expression.” The judges observed that the press enjoys the freedom of speech under Article 19(1)(a) of the Constitution which is guaranteed to all the Indians citizens, however this can be restricted in accordance with clause (2) of Article 19 in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence [p. 9].
To arrive at a conclusion, the judges reviewed many landmark cases on the freedom of speech and expression which included Romesh Thappar v. Union of India [AIR 1950 SC 124], Brij Bhushan v. State of Delhi [AIR 1950 SC 129], Sakal Papers v. Union of India [AIR 1962 SC 305] and various others to emphasize that “the restrictions contained thereunder would make it clear that even the press is not at liberty to scuttle the freedom of life and personal liberty of any citizen. However, the principles of law propounded by the apex court also would show that the freedom enjoyed by the press as the fourth estate in the governance of the country is vital and also distinguished so as to protect the interests of public, and in the matter of disseminating the news for the public good” [p. 20].
The judges opined that there were sufficient protective measures granted under the Indian Penal Code and the Contempt of Courts Act, for redressal of grievances as sought by the petitioner. Furthermore, according to the judges, the Press Council Act, 1978 preserved the freedom of the press and maintained and improved the standards of newspapers by constituting an authority vested with statutory powers. Apart from the same, the judges observed that the Cable Television Networks (Regulation) Act, 1995 and the Cable Television Network Rules, 1994, had sufficient provisions to control the functioning of the electronic media and any aggrieved person could approach the authorities constituted thereunder and seek redressal [p. 37].
Furthermore, the judges extensively discussed the judgment of Supreme Court in the case of Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India [(2012) 10 SCC 603] in which it was held that laying down a guideline to regulate the activities of the media was not a wise proposition. The Court also observed that in M.R. Saravnan v. Joint Secretary [W.P. (C) No. 21497 of 2017], which was presided over by one of the present judges, a similar petition seeking guidelines was dismissed due to already existing legal provisions and it was therein held that “the freedom of expression is a pivotal component of our individual development – as human beings and as political animals – and to improve and radicalize democracies. The invention of the press was a turning point in the debate about freedom of expression. The printing press magnified the reach of opinions, information and ideas. Indeed, the pen became mightier than the sword” [p. 36].
The judges concluded that a public interest litigation to frame guidelines to restrict the media could not be entertained. They further held that the judgments of the Supreme Court make it clear that the media can be restricted by the courts on a case to case basis. By placing reliance on the Supreme Court judgment in Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India [(2012) 10 SCC 603], the judges held that general framing of guidelines for regulating the press was not possible [p.37].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court of Kerala expanded expression by dismissing the petition and refusing to pass any guidelines regarding regulation of the print and electronic media. The judges observed that the presence of existing safeguards was sufficient to restrict the misuse of Article 19(1)(a) and more guidelines for media control were not needed. The judges reiterated the judicial precedents to emphasize that “the freedom of expression is a pivotal component of our individual development – as human beings and as political animals – and to improve and radicalize democracies. The invention of the press was a turning point in the debate about freedom of expression. The printing press magnified the reach of opinions, information and ideas. Indeed, the pen became mightier than the sword.”
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