Not a blanket freedom!


Freedom of speech and expression is guaranteed by the Indian Constitution but this right, more often than not, is observed more in breach than practice in the guise of creativity. While the conventional and legacy media is usually known to draw a line, the new age social media and the OTT should learn to exercise restraint, feels Manu Shrivastava.

Earlier this year, when the web series Tandav found itself mired in controversy, once again bringing to fore issues of freedom of speech and expression and the need of censorship by the authorities, the Indian government finally decided to address the long-pending issue.
The Constitution of India guarantees all citizens of the country the Fundamental Right to Freedom of Speech and Expression under Article 19(1)(a) of the constitution. It’s the most valued and concurrently the most misused right given to a citizen. The Freedom of Speech and Expression not just affects all Indians, it also forms the basis of any act of dissent towards the violation of any other freedom guaranteed by the Constitution.

Media’s right to express

The media industry rests primarily on the freedom of speech and expression. It’s here that there are constant tussles between the fundamental right and the restrictions associated. The Press aka the Media is guaranteed the ‘Right to Express’ under this very fundamental right available also to every citizen of India. Contrary to popular notions, in India, the media – the Fourth Estate – does not enjoy any special or exclusive rights to do what it does. That, however, does not prevent the media from toying with the freedom in myriad ways and forms. It’s in the reach of the freedom that sets the media apart from the common man.

As the fourth pillar of democracy, media has to exercise certain roles and it’s this freedom of speech and expression that enables it to question the other three pillars – judiciary, legislature and the executive. Also, in times of opposition from the other pillars, it’s this very freedom that empowers the media to stand its ground and question the powerful and the mighty.

Laws governing traditional media

The media in India is arguably free and has the freedom of expression but subject to certain ‘reasonable restrictions’ as laid down in the Indian Constitution. The right granted under Article 19 is not an absolute right and can be restricted. Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech that come into effect under the following situations:
Security of the State;Friendly relations with foreign States;Public Order; Decency and Morality;Contempt of Court; Defamation;Incitement to an Offence andSovereignty and Integrity
of India.

These apart, there are several other laws that govern various aspects of media. The Newspaper (Prices and Pages) Act, 1956 empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and regulate the allocation of space to be allowed for advertising matter.

Under the Press Council Act 1978, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India.

The Copyright Act 1957 defines ‘copyright’ as the exclusive right to commercially exploit the original literary, dramatic, artistic, musical work, sound recordings or cinematographic films as per the wishes of the owner of copyright subject to the restrictions imposed in the Act.The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or view any unauthorised recordings and prescribes severe penalties, including imprisonment, fines as well as confiscation of the equipment used for the purpose of such recording and exhibition.

Challenges with Social Media

The Freedom of Speech and Expression exercised by the traditional media and the complementing restrictions too have been ineffective when it comes to media’s youngest avatar that started to emerge at the onset of this century – Social Media.

When social media platforms, social networking sites and intermediaries penetrated in the country, no one had imagined how far they’d manage to affect the Indian population. So, what started with engaging the young soon expanded to people from all age groups, backgrounds and today notches a formidable reach of content circulated to millions of users across India.

Appropriate laws have been introduced over time and amendments made to the existing ones but the fast-evolving social media scenario needs more attention and faster responsetime.

Films and Censorship

Films have been the most closely associated with censorship and cuts. Where public responses to a film are concerned, they have little to do with the film-maker’s Freedom of Speech and Expression. Every year, there are films that trigger a violent response from the public. This, inevitably, brings the freedom vs censorship discussion to the fore: Where does the freedom of expression of a film-maker end and at what cost?

Films such as Padmaavat, Fire, Kai Po Che, The Attacks of 26/11 and many more have incited violence in the country and raised the question on the freedom of expression. In most cases, the retorts associated with these films comprised anger and disdain towards the film-maker’s treatment of real issues or distortion of history or facts, etc.
The Central Board of Film Certification (CBFC), a statutory film-certification body in the Ministry of Information and Broadcasting is tasked with ‘regulating the public exhibition of films under the provisions of the Cinematograph Act 1952.’ Often, CBFC decisions are questioned by film-makers who cite their freedom of speech and expression and poetic license i.e.,the freedom of an artist or a creator to change or distort facts in order to create a work of art, as their defence.

Regulating OTT platforms

In February 2021, the Government of India announced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 to tighten its control over digital media and Over The Top (OTT) video streaming platforms that have flooded the Indian digital space in the last five years.

OTT platforms such as Netflix, Zee 5, Amazon Prime Video, Voot, ALT Balaji, Jio Cinema, Sony Liv, MX Player, etc. are screening ‘unchecked’ content at unprecedented rates given the sheer size of the Indian audience and the fast-growing market for OTT services.

“The idea is to create a level-playing field for all media, since print and television already worked under certain restrictions,” said Union Minister of Information and Broadcasting Prakash Javadekar as he announced the guidelines.
With the new rules, the government is introducing a three-tier mechanism termed as a ‘soft-touch regulatory architecture’ where the first two tiers bring in place a system of self-regulation by the platform itself and by the self-regulatory bodies of content publishers, the third calls for an oversight mechanism by the Centre.

Publishers of news on digital media will be required to observe norms of journalistic conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act, so far followed by print and TV respectively.

Freedoms vs restrictions

Without the freedom of speech and expression, the media could not have churned out the millions of human interest stories, document oppression, injustice and unlawful administrative practices.

The media in India has the freedom to write about anything or report on any issue in any manner they like. However, just like all other freedoms, the one of Speech and Expression isn’t without restrictions that must be respected to maintain the dignity of democracy and uphold the Constitution.

The role of traditional media has chalked out over the years. It’s the emergence of social media, associated platforms and, now, OTT platforms that have spawned aggressively in the last decade that need to be moderated in national interest.

Manu Shrivastava

Manu Shrivastava is a media legal researcher with DraftCraft International, and co-convener of ‘The Woman Survivor’ initiative that documents abuse of women and children within families.