With the apex court’s order, professional media will now have to factor in the right to privacy afforded to citizens which will imply the need for a thorough introspection than it has hitherto exhibited, writes ISHAN JOSHI
Coincidence, perhaps, but for the second time in three days this week, the Supreme Court has delivered an excellent, progressive judgement. By holding, on Thursday, that the right to privacy is an integral aspect of the right to life under Article 21 of the Constitution, it ensured that every Indian, who woke up on Wednesday is proud to be a citizen of a country where medieval practice of triple talaq had no place, and could conceivably say the next day if s/he was so minded: I, Sovereign. On bended knee, thank you.
Now, before our friendly neighbourhood anarchists, self-propelling and entitled in the main, take over the discourse, it would be prudent to point out that Thursday’s judgment establishes the principle of privacy as a fundamental right and offers no comment whatsoever on the specifics of any case, Aadhaar and the criminalisation of homosexuality included.
Those will correctly be decided, to resort, to officialese, on a case-by-case basis. For, each issue has its own peculiarities and while individual cases will obviously have to be decided in the light of the principle established by privacy-as-fundamental-right judgement, the applicability of reasonable restrictions would also come into play, depending on the intention of the measure and the context in which it is proposed. As German Romantics, or was it Faust put it, without context we do not exist.
(Disclosure: This writer supports Aadhaar being made mandatory for all citizens in the interests of good governance and national security, and is an equally strong proponent of the decriminalisation of homosexuality on the principle of individual autonomy because not doing so discriminates among citizens based on their sexual preference. The common thread in both stands is common sense.)
The impact of the judgement on professional media — social media is a different story altogether — across print, television, and digital platforms may also be profound. It is a chaotic ecology out there, even without social media in the mix. It may, therefore, be helpful for consumers of information and/or knowledge to get straight the fact that despite exhortations to the contrary from some of its purveyors, professional media on any platform, is emphatically not a representative of the people or their will. For that, village panchayats, municipal councilors, MlAs, and MPs — good, bad and ugly — are still the only recourse in our electoral democracy.
Media is, at its best, an informed interventionist in the public discourse and the nature, intention, and interest of the intervention is dependent on the organisational aesthetic (the word is used in its all-encompassing sense here) of individual media companies, which itself is dependent on varied factors, including ownership structure, editorial values, commercial interests and strategic vision. Against this backdrop, enter, privacy as a fundamental right.
To refrain from following the footsteps of the political class in its propensity to legislate some of the most thoughtfully crafted and progressive laws in the world without first, or even simultaneously, ensuring extant laws are rigorously implemented and a decrepit civil/criminal justice system overhauled, professional media, perhaps, ought to understand its own statutory rights, limitations, and structures as it enters this brave new world which will entail, at least on paper, that the fundamental right to privacy of each citizen is respected. The analogy may be harsh — whether on the political class or the media, depends on your point of view — but that doesn’t make it less apt.
A caveat before continuing is essential in these days of easy allegations: This discussion on the ways and means of exercising the essential right of media freedom, for those engaged in public discourse, does not emanate either from the times we live in or from those we have lived through. Proof, if any needed, for previous assertion may be deduced from the fact that this article is an updated and abridged version of a paper first presented by the writer in 2007 at the second Forum for Emerging leaders in Asian Journalism, Manila, organised by the Asian Centre for Journalism, when the Congress-led UPA was at the peak of its power just as the BJP-led NDA is today.
This article stems from a much more prosaic motivation — to press the largely unrecognised point that media freedom in India is an implicit, derived right under the Constitution and not an explicit or exclusively protected one. It is thereby susceptible on more than just the usual counts and quoting convention over canon won’t always cut it. It is a well-established principle in Indian jurisprudence that the media enjoys rights that are coterminous with those of the public. So, when journalists and media houses exercise their unalienable right to free speech (with reasonable restrictions which are justiciable) they are doing so as garden or common variety of citizens and not as recipients of any exclusive protections under the Constitution.
This is unlike the situation in the US, for example, where the First Amendment to the Constitution ensured specifically that the ‘Press’ enjoys rights that go beyond the public’s right to free speech. The text of the amendment (The Bill of Rights) reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Media freedom in India is derived from the right to free expression for all citizens, which in turn is related to the public right to information. It is important to take on board that at the time of the framing of the Constitution, the right to freedom of expression was enshrined in the statute but not right to information. As right of access to information can only be implied from the guarantee under Article 19 of the freedom of speech and expression, reasonable restrictions placed on these rights have been interpreted by Governments, most notably during the Emergency, as disabling clauses. The Freedom of Information Act 2002, and its successor Right to Information Act 2005, have, however, addressed this problem substantially.
So, it doesn’t really matter to the state of Press rights in India if it is the ‘liberal’ Jawaharlal Nehru as an exemplar of media freedom that gets the start-ups going or if it is the ‘traditionalist’ Narendra Modi who has come into his own as a leader by convincing the media establishment to join his nation-building effort as a force-multiplier à la lee Kuan Yew. This is far more serious than that. Among the institutions, though the term itself is not unproblematic when applied to professional media which is highly fragmented and has arguably never really been homogeneous apart from in the first couple of post-Independence decades, that contribute to constructing a public sphere in society, the media still performs a critical function.
Today, in transactions in public sphere, the media is rarely a neutral participant or only an impassioned chronicler and it’s up for debate if it ever really was. Depending on its predilections, media either legitimises the status quo, or the change. And it does so, based on the structures it puts in place and uses to access, process, and disseminate information or knowledge which it perceives as valuable. The conflict or collaboration of media with forces that attempt to control the public sphere materialises in this context.
Professional media, therefore, works in a fragile environment and it is incumbent on stakeholders to understand the legal basis for the rights they exercise. Additionally, professional media will now need to factor in the right to privacy afforded to each citizen which would imply the need for a rather more thorough introspection than it has hitherto exhibited on how it gathers, processes, and presents/disseminates information without compromising public interest mandate. Media law may well be the new lucrative frontier.
Argue, a media outlet certainly should, if it thinks it has a viable argument worth making; support, a media firm must openly, those it shares a vision with but not in naïve self-delusion that ascribes a counter-intuitive restraint to the wielders of power; dissent, a media house ought to express, freely and responsibly, though without buying into the self-serving scaremongering of those outside the loop and responsibility of power.
For, the Gramscian notion of cultural hegemony is easily discernable in the impulse to shape the public narrative in a democracy by all political establishments and their allies or adversaries from the media, and it is a perfectly legitimate aspiration provided there is no aspect of it that’s ultra vires of the Constitution or against the law of the land.
After all, everybody and their chacha has been at it Circa 1947-2017 to a lesser or greater degree regardless of the ideology that has informed successive Governments in post-Independence India.
(The writer is a Goa-based journalist)