AcknowledgementI would like to take this opportunity to extend a word of my gratitude to my esteemed ‘Human Rights’ faculty Mr. P.P. Rao, who had been a constant source of inspiration for me in the pursuance of this project. Sir has been gracious enough to guide me on the right path which has enabled me to strengthen my efforts. May I also take this opportunity to wish the reader of my project a knowledgeable experience. The project has been made with utmost care & with utmost finesse to see that the information mentioned is to the best of the accuracy and correctness.
The method of research adopted in this project is doctrinal and non doctrinal in nature. The library facilities of Chanakya National Law University have been duly availed of by the researcher. The books available in the library have greatly helped in collecting relevant data for the project. Due to constraint of space, the topic has been covered in a brief and candid way. The research plan adopted was that the researcher first read about the topic from different sources then brought the material together and then critically analyzed it in the conclusion.
The aim of the project was to look at the various legislations in India in regards to the Labour Laws and different acts and the amendments. The researcher has adopted the chapterization method and used the continuous format for footnoting. Sources of Data:
The following secondary sources of data have been used in the project- 1.Articles2. Books3. WebsitesMethod of Writing:The method of writing followed in the course of this research paper is primarily analytical. Mode of Citation:The researcher has followed a uniform mode of citation throughout the course of this research paper.
table of contents.
INTRODUCTION 5 HUMAN RIGHTS, FREEDOM OF PRESS AND THE CONSTITUTION OF INDIA 8 TRIAL BY MEDIA: THE REAL SCENARIO 17 RIGHT TO PRIVACY AND MEDIA 23 CONCLUSION 30 BIBLIOGRAPHY 32
It has been rightly said by Alexander Solzhenitsyn “Justice is conscience, not a personal conscience but the conscience of the whole of the Humanity.” The name of the justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation. The world is really in the need of generous magnanimity and understanding charity. Our world is becoming smaller and ever more interdependent with the rapid growth in population and increasing contact between people and governments. In this light, it is important to reassess the rights and responsibilities of individuals, peoples and nations in relation to each other and to the planet as a whole. Men are born and remain free and equal in Rights. Social distinctions may be based only on common utility.
The truth has to be holding self-evident, that all men are created equal, that their creator endows them with certain in alienable Rights that among these are life, liberty and the pursuit of happiness. The concept of Human Rights is as old as Human civilizations; the origin of the contemporary conception of Human Rights can be traced to the period of the Renaissance and later of the enlightenment of which Humanism may be said to be the heart and soul. The promotion and protection of human rights has been a major preoccupation for the United Nations since 1945, when the Organization’s founding nations resolved that the horrors of The Second World War should never be allowed to recur.
The history of mankind is marked by the efforts to ensure respect for the dignity of Human beings. The struggle for the recognition of Human Rights and the struggle against political, social, economic, social and cultural oppression, against injustice and inequalities, have been an integral part of the Human societies. Human Rights are generally defined as the Rights, which every Human being is entitled to enjoy and to have protected. It means the right relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforced by the courts in India.
Human Rights are internationally agreed values, standard or rules, regulating the conduct of states towards their own citizens and non-citizens. Human Rights are “the common standard of achievement for all peoples and all nations”. Human Right is a birthright. Everyone born possesses such inherent Rights, irrespective of the, sex, caste, creed, race and religion. It is an integral Right of the Human being and also it has been incorporated in almost all the constitutions across the globe. It is immaterial that you call these Rights as inherent Rights, Fundamental Rights or by any other name. In the modern world the perception of Human Rights has assumed universal proportion, and now it is a subject of international diplomacy, law and institutions. The ‘World Conference on Human Rights’ held in 1993 marks a crucial stage in UN Policy in the field of human rights.
The Vienna Declaration encouraged the United Nations to pursue and strengthen its activities to make respect for human rights a priority objective on the same level as development and democracy and to work for the concurrent achievement of these three objectives. It is interesting to note that the United Nations Commission on Human Rights also created in 1947, a sub-commission on Freedom of Information and of the Press to report to the Commission on Human Rights on what rights, obligations and practices should constitute the freedom of information. This necessarily had to be juxtaposed with the human rights.
The Universalization of Human Rights is now a political fact. Democracy, development and the respect for the Human Rights and Fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, cultural and social systems and their full participation in all aspects of their lives.
In the context of the above, the promotion and protection of Human Rights and Fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should support the strengthening and promoting of democracy, development and respect of Human Rights and Fundamental Rights in the entire world. Justice Patanjali Shastri in one of the earliest cases on the press freedom, namely, Romesh Thapper v. State of Madras underlined the special role of the press in a democratic organisation. The World Conference on Human Rights reaffirms the Right to Development, as established in the Declaration on the Right to Development, as a universal, unassailable and an integral part of Fundamental Human Rights.
While development facilitates the enjoyment of all Human Rights, the lack of development may not be invoked to justify the abridgement of internationally recognized Human Righ. The radical movements which materialized at the later half of the 18th century marked the beginning or recognizing the Rights of the man which was considered to be unassailable and hallowed as the Fundamental foundation of their resist which was followed by socialist movement in 19th century which ruled out the class system and propounded the establishment of social and economic equality.
The notion of Human Rights, its universal nature and recognition which is based on the rich heritage of the past can be seen specifically in the twentieth century as it also experienced the two most devastating wars in Human history after which this concept was reflected in various declarations of war aims proclaimed by the countries. It was the United Nations Charter of 1945, which initiated the recognition of the notion of Human Rights universally, and it affirmed faith in “Fundamental Human Rights” and “in the dignity and worth of the Human person”.
Article 14 to 17 deals respectively with protection of the Right to life, protection from arbitrary arrest and detention, protection from freedom of movement and protection from inhumane treatment. Article 24 of the charter of the United Nations confers on the Security Council “primary responsibility for the maintenance of international peace and security.”
HUMAN RIGHTS, FREEDOM OF PRESS AND THE CONSTITUTION OF INDIA
Speech is God’s gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” proclaims the Universal Declaration of Human Rights (1948).
The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1) (a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.
Man as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. Freedom of Press carries different meanings for different people. But freedom of press can not be absolute. There must be boundaries to it and realistic discussion concerns where these boundaries ought to be set. The right to freedom of speech and expression is subject to limitations imposed under Article 19(2).
Freedom of speech is the concept of being able to speak freely without censorship. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The right to freedom of speech is guaranteed under international law through numerous human-rights instruments, notably under Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights, although implementation remains lacking in many countries.
The synonymous term freedom of expression is sometimes preferred, since the right is not confined to verbal speech but is understood to protect any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Freedom of expression is a sacred right well accepted over the globe. In Indian Constitution, it finds place as a guaranteed fundamental right. The Government of India in tune with Constitutional mandate professes its anxiety to protect and safeguard this fundamental right.
But no right and for that matter right to freedom of expression is absolute and unfettered in all circumstance but bound by duty to maintain peace and harmony of the body polity by exercising prudence and restraint in the exercise of right to freedom of speech. If exercise of this right is likely to inflame passion which in turn may lead to further violation of human rights and promote more bloodshed of the innocent, the right to freedom of expression needs circumspection and consequential restraint for greater good of the society.
Furthermore, the media whether print or electronic, should be guided by the compulsion of self imposed restraint and anxiety to prevent further violation of human right and loss of more life on account of media reporting. In practice, the right to freedom of speech is not absolute in any country, although the degree of freedom varies greatly. Industrialized countries also have varying approaches to balance freedom with order.
For instance, the United States First Amendment theoretically grants absolute freedom, placing the burden upon the state to demonstrate when (if) a limitation of this freedom is necessary. In almost all liberal democracies, it is generally recognized that restrictions should be the exception and free expression the rule; nevertheless, compliance with this principle is often lacking.
The abuse of the Human Rights has been recognized as one of the root causes of contemporary armed conflicts and, at the same time, the protection of Human Rights is considered as one of essential elements of peace-making and peace-building. It was tracked by a remarkable step towards shaping the Human Rights i.e. the adoption of Universal Declaration of Human Rights, 1948 which declared that “everyone is entitled to all the Rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it is independent, trust, non-self-government or under any other limitation of sovereignty”. It is imperative that the members of the international community fulfill their solemn obligation to promote and encourage admiration for Human Rights and Fundamental freedoms.
The most important is the non-derogability of the Right to life, the prohibition on torture, cruel, inhumane or humiliating treatment and punishment and the Right to freedom of thought, conscience and religion. If the act amounts to inhumane and degrading treatment, it attracts grave violation of Human Rights. Whereas disregard and contempt for Human Rights have resulted in barbarous acts, which have outraged the conscience of mankind and the advent of the world, in which Human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspirations for the common people.
Free speech is the cornerstone of a free society as it is an inherent, inalienable right of the citizens of a democratic country. It is a basic human right enjoyed by all such citizens, regardless of cultural, religious, ethnic, political formation or other backgrounds and is the foundation over which other basic human rights are built.
Often regarded as an integral concept in a democratic set up, without free speech no justice is possible and no resistance to injustice and oppression is possible. Thus freedom of speech is significant at all levels in society. It is also equally important to governments because when criticisms of a government are freely voiced, the government has an opportunity to respond to the grievances of the citizens.
On the other hand, when freedom of speech is restricted, rumours, unfair criticisms, comments and downright falsehoods are circulated through private conversations and surreptitiously circulated writings. In that context, the government is in no position to counter such views, because they are not publicly stated. It is in the government’s interest to allow criticisms in the public arena where it can answer its critics and correct its mistakes if any. Now, due to the surge of Information Technology, the governments have wider and faster access to electronic media far in excess of past communication channels.
Though the concept of ‘freedom of speech and expression’ has been accepted throughout the globe, human rights activists remark that new threats hang over freedom of expression in the context of the criticism of any religion. It is felt that freedom of speech should not be equated with freedom to assail and ridicule another person’s belief. It should not also be equated with the right to instigate hatred and violence. The hurting of religious sensibilities is something that every group alleges when someone says or writes on a religious theme, which is not to the liking of the religious group concerned.
Those who claim that their religious freedom has been affected, attempt to agitate against it. As a consequence, this paves the way for stifling the freedom of speech and expression. Banning of the book Satanic Verses authored by Salman Rushide in India, and Pradip Dalvi’s play Godse are some cases in point. This freedom has been under attack in a variety of ways particularly under the guise of censorship. In India, freedom of speech and expression is guaranteed under Article 19(1) (a) of the Constitution of India. Article 19(1) (a) says that all citizens shall have the right to freedom of speech and expression.
But this right is subject to reasonable restrictions imposed on the expression of this right for certain purposes under Article 19(2). The First Amendment of the Constitution of the United States, guaranteeing freedom of speech, is regarded as the root for the development of this concept in western countries. It can be observed that Article 19(1) (a) of the Constitution of India corresponds to the First Amendment of the United States Constitution, which says, “congress shall make no law… abridging the freedom of speech or of the press”.
According to the provisions in the US Constitution a notable feature is that no restrictions are mentioned on the freedom of speech. It is reported that since the adoption of the New Communication Strategy by the General Conference in 1989, United Nations Educational, Scientific and Cultural Organization (UNESCO) has contributed to a wider recognition and public awareness of the importance of freedom of speech and expression as a fundamental human right. It emphasizes that the governments have a duty to eliminate barriers to freedom of speech and expression and take steps to ensure an environment in which free speech and expression flourish. In addition to this, the freedom of speech is recognized as a human right under Article 19 of Universal Declaration of Human Rights.
The International Human Rights Law in the International Covenant on Civil and Political Rights (ICCPR) recognizes the right to freedom of speech as “the right to hold opinions without interference. Everyone shall have the right to freedom of expression”. Furthermore, freedom of speech is recognized in European, inter-American and African regional human rights law. A balance may have to be struck between the ability of individuals to be unrestricted in the free expression of thoughts and ideas, and the need to ensure that governments are able to efficiently carry out their function of administration, law and order, and preserving the rights of individuals vis-a-vis each other.
Finally it can be concluded by introspection by remembering the words of Benjamin Franklin, one of the most prominent of Founders and early political figures and statesmen of the United States – “Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech”. “In a free society which boasts of democracy, it is the Constitution that should be the supreme law.”
Media for social justice: The role of legislators and the courts in their efforts to maintain “rule of law”, usher in “economic and social justice” and administrative apparatus needed for securing the advantages and benefits to weaker sections have been described at length. However, the media in the country has been playing a very significant role to the cause of social justice in a variety of ways. Despite the criticism that the media is not playing its rightful role and engaging himself in politics of the day to the neglect of portraying the good work done by all the sectors concerned with the task of promoting social justice, it is necessary to point out the good work done by the media and its potentialities and capabilities to play a more vital role in future.
The right of a citizen to exhibit films on Doordarshan is similar to the right of a citizen to publish his views through any other magazines, advertisement hoardings, etc. subject to the terms and conditions of the owners of the media. In Odyssey Communications Pvt. Ltd. V Lokvidayan Sanghatana while considering a citizens’ right to exhibit films, the Supreme court held as follows: –
“The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right f the freedom of expression guaranteed under article 19(1) (a) of the constitution of India, which can be curtailed only under circumstances which are set outin clause (2) of article 19 of the Constitution of India.
The right is similar to the right of citizen to publish his views through any other media such as newspapers magazines, advertisement hoarding etc. subject to the terms and conditions of the owners of the media…” In Indian Express Newspapers (Bombay) Pvt. Ltd. v Union of India this court after pointing out that communication needs in a democratic society should be met by the extension as specific right to inform, the right e.g., the right to be informed, the right to inform, the right to privacy, the right to participate in public communication, the right to communicate, etc. proceeded to observe as follows:-
“In today’s fine world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in large scale particularly in the developing world where television and other kind of modern communication are not still available for all sections of society.
The purpose of the press is to advance the pubic interest by publishing facts and opinions without which democratic electorate cannot make responsible judgments. Newspaper being purveyors of news and views have a bearing on public administration, very often carry material which would not be palatable to Governments and other authorities. The authors of the articles, which are published in the newspapers, have to be critical of the auction of the government in order to expose its weaknesses. Such articles tend to become on irritant or even a threat to power.”
Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is therefore, a basic human right. “Everyone has the right to freedom of opinion and expression; the right includes the freedom to hold opinions without interference and to seek and to receive and impart information and ideas through any media and regardless of frontiers” proclaims the universal declaration of Human rights, 1948. The people of India declared in the preamble of the constitution, which they gave unto themselves their resolve to secure all citizens, liberty of thought and expression.
This resolve is reflected in article 19(1) (a) which is one of the Articles found in part III of the constitution which enumerates the Fundamental Rights. The article reads as under: “19 (1) All citizens shall have right,–(a) to freedom of speech and expression;” Article 19(2) Nothing in sub clause (a)of clause (1), shall affect the operation of any existing law, or prevent the state from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interest 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.”
The words “freedom of speech and expression” must, therefore, be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. It therefore, includes the right to propagate one’s views through the print media or through any other media channel, e.g., the radio and the television. Every citizen of this free country therefore has the right to air his or her views through the printing and or the electronic media subject to course to permissible restrictions imposed under Article 19(2) of the constitution.
The print media, the radio and the tiny screen play the role of public educators so, vital to the growth of the healthy democracy. Freedom to air ones views is the lifetime of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. It cannot be gain said that modern communication medium advances public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy.
Therefore in any set up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article19 (2) of the constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media, since it is well known that these communication channels are a great purveyors of news and views and make considerable impacts on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance.
Once it is conceded and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism leveled against the view propagated by him.
Every free citizen has an undoubted right to lie what sentiments he pleases before the public: to forbid this, except to the extent permitted by Article 19(2), would be an inroad on his freedom. This freedom must however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to prejudice public interest. It is a manifest form Article 19(2) that the right conferred by article 19(a) to subject to imposition of reasonable restrictions in the interest of, amongst others public order, decency or morality or in relation to defamation or incitement to an offence. It is therefore, obvious that subject to reasonable restrictions placed under Article 19(2) (a) citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(a).
A constitutional provision is never static; it is ever evolving and ever changing and therefore, does not admit of a narrow, pedantic or syllogistic approach. It was the broad approach adopted by the Court, which enabled them to chart out the contours ever expanding notions of press freedoms. In Dennis v. United States, Justice Frankfurt, observed: – “…
The language of the first amendment is to be read not as a barren words found in a dictionary but as symbols of historic experience illuminated by the presuppositions of those who employed them.” It also inter alia recommends that “the media should play a role in peace-building activities, by making use of anything that may foster such activities, advocating reconciliation and upholding the values of tolerance and non-violence and the call for human communities to live together, for example by developing innovative programmes that allow peoples affected by armed conflict or terrorism to express themselves, and which can create a space for dialogue by highlighting mutual respect, collaboration and reconciliation” and emphasizes that “in order for society to address the issues that create an environment conducive to terrorism, the media should play a role in facilitating the open debates and discussions that are fundamental elements of democracy.”
TRIAL BY MEDIA: THE REAL SCENARIO
One of the fundamental rights that are guaranteed to every citizen of India (and most democratic countries, for that matter) is the right to a free and fair trial. It is considered to not merely be a modern legal right, but also an essential principle of natural justice and, thus, has certain connotations and implications that extend beyond its strict legal character. In short, the right to a free and fair trial is considered sacrosanct and inviolable in most modern democracies, and is an essential part of modern democratic justice systems.
If this fundamental right is not ensured to all individuals and entities that are indicted in a court of law, then the integrity of the court and the legal system itself will have been effectively compromised. Right to a fair trial is an absolute right of every individual within the territorial limits of India vides Articles 14 and 20, 21 and 22 of the Constitution. The right to a fair trial effectively flows from Article 21 of the constitution to be read with Article 14. It must be noted here that the legal concept of fair trial is not purely for the private benefit for an the Supreme Court explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm.
Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” accused – the publics’ confidence in the integrity of the justice system is crucial, as stated in Gisborne Herald Co. Ltd. V. Solicitor General. The right to a fair trial is at the heart of the Indian criminal justice system. It encompasses several other rights including the right to be presumed innocent until proven guilty, the right not to be compelled to be a witness against oneself, the right to a public trial, the right to legal representation, the right to speedy trial, the right to be present during trial and examine witnesses, etc. In the case of Zahira Habibullah Sheikh v. State of Gujarat.
The basic point of contention here is to what extent the Freedom of the Press (as implied in the Constitution of India), and the right to a free and fair trial can co-exist in modern Indian society. Freedom of speech and expression incorporated under Article 19 (1) (a) has been put under ‘reasonable restriction’ subject to Article 19 (2) and Section 2 (c) of the Contempt of Court Act. Of special note here, however, is the rise of electronic media in recent times, which has changed the landscape of media coverage entirely.
The rise of sensationalist news reporting on criminal issues is unmistakable, and its effect on the judicial process, however subtle and insidious, can