Media Law and Ethics

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Media Law and Ethics

Name: Aaliyia Malik

SI. No.	Title	Page Number
1.	Assignment 1 – Essay on Freedom of Expression	2
2.	Assignment 2 – Constitutionality of Media Trials	6
3.	Assignment 3 – Essay on RTI	10
4.	Assignment 4 – The role of CEC’s office in regulation elections in India	13
5.	Assignment 5 – Note on Raj Narain vs UPA	16
6.	Assignment 6 – Impact, Justification and the future of media regulation	19
7.	Assignment 7 – Essay on Sting Operation	22
8.	Assignment 8 – Short note on Media Trial with relevant case studies	27
9.	Assignment 9 – Essay on live reporting and its criticism in India	32
10.	Assignment 10 – Note on ethical issues in social media and related laws	35
11.	Assignment 11 – Short note on Sedition	39

Assignment – 1

Write an essay on Freedom of Expression

The Constitution of India provides the right to freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution. The right to freedom in Article 19 guarantees the freedom of speech and expression as one of its six freedoms.

History

The law in the current form fins its roots in the Hate Speech Law section 295 (A) enacted by the British Administration in India. This act was brought about in the backdrop of a series of murders of Aarya Samaj leaders who polemicized against Islam. 

The Constitution of India 1950 was drafted by the Constituent Assembly from 1946- 1950. However, this Constitution drew on a longer history of antecedent documents drafted either as legislation governing British India or aspirational political documents. Few documents that contained provisions on freedom of speech and expression were Commonwealth of India Bill 1925, Nehru Report 1928, and the States and Minorities 1945. 

Necessity to Protect Freedom of Speech and Expression:

Freedom of speech offers human beings the ability to express their feelings. However, there is more to it than just protection of essential liberties. 

* For discovery of truth by open discussion

* Free speech as an aspect of itself fulfillment and development – freedom of speech is an integral aspect of each individual’s right to self development and self – fulfillment

* For expressing belief and political attitudes

* For active participation in democracy.

Article 19 (1) (a) of the Indian Constitution states that, “all citizens shall have the right to freedom of speech and expression”

The philosophy behind the article lies in the Preamble to the Constitution where a solemn resolve is made to secure to all its citizens, liberty of thought and expression. The exercise of this right is subjected to reasonable restrictions for certain purposes being imposed under Article 19 (2) of the Indian Constitution.

Main elements of right to freedom of speech and expression:

* The right is available only to a citizen of India and not to a foreign national

* The freedom of speech under Article 19 (1) (a) includes the right to express one’s view and opinions at any issue through any medium i.e., word of mouth, writing, printing picture, film etc.

* This right is however, not absolute and it allows the government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, defamation and incitement to an offense etc.

* These restrictions on the freedom of speech of any citizen maybe imposed as much as an action of state as by its inaction. Thus, failure on part of the state to guarantee this right would constitute a violation of Article 19 (1) (a)

Cases that explained freedom of speech and expression:

1. Romesh Thapar vs. State of Madras

Patanjali Shastri rightly observed that Freedom of Speech and of Press lay at the foundation of all democratic organizations for without free political discussion, no public education, so essential for the proper functioning of the process of government is possible

2. Indian Express vs. Union of India

It has been held that the Press plays a very significant role in the democratic machinery the courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom.

3. Maneka Gandhi vs. Union of India

The Supreme Court considered whether Article 19 (1) (a) of the Indian Constitution was confined to Indian territory and held that the freedom of speech and expression is not confined to National boundaries.

4. S. Rangarajan vs. Jagjivan Ram

Opens criticisms of government policies and operations is not a ground for restricting expression. Intolerance is as much dangerous to democracy as to the person himself.

5. Bennet Coleman and Co. v. Union of India

In this case, the validity of the Newsprint Control Order was challenged. The Order fixed the maximum number of pages which a newspaper could publish, and this was said to be violative of Article 19(1) (a) of the Indian Constitution. The government raised the contention that fixing the newsprint would help in the growth of small newspapers as well as prevent monopoly in the trade. It also justified its order of reduction of page level on the ground that big dailies devote a very high percentage of space to advertisements, and therefore, the cut in pages will not affect them. The Court held the newsprint policy to be an unreasonable restriction, and observed that the policy abridged the petitioner’s right of freedom of speech and expression. The Court also held that the fixation of page limit will have a twofold effect- first, it will deprive the petitioners of their economic viability, and second, it will restrict the freedom of expression as compulsorily reducing the page limit will lead to reduction of circulation and area of coverage for news and views.

6. Hamdard Dawakhana v. Union of India

The validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases was challenged on the ground that the restriction on advertisement abridged the freedom. The Supreme Court held that an advertisement is no doubt a form of speech but every advertisement was held to be dealing with commerce or trade and not for propagating ideas.

7. A. Abbas v. Union of India

The case is one of the firsts in which the issue of prior censorship of films under Article 19(2) came into consideration of the Supreme Court of India. Under the Cinematograph Act, 1952, films are divided into two categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that can be shown to adults only. The petitioner’s film was refused the ‘U’ certificate, and he challenged the validity of censorship as violative of his fundamental right of freedom of speech and expression. He contended that no other form of speech and expression was subject to such prior restraint, and therefore, he demanded equality of treatment with such forms. The Court, however, held that motion pictures are able to stir emotions more deeply than any other form of art.

Grounds on which freedom could be restricted:

Freedom of speech and expression guaranteed by Article 19(l)(a) is not absolute. There is no such thing as a absolute or unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled license which would tend to lead to disorder and anarchy. Our Constitution has rightly attempted to strike a proper balance between the various competing social interests.

Clause (2) of Article 19 of the Indian Constitution imposes certain restrictions on free speech under following heads:

1. Security of the state

2. Friendly relations with foreign states

3. Public order

4. Decency and morality

5. Contempt of court

6. Defamation

7. Incitement to an offense

8. Sovereignty and integrity of India. 

According to the estimates of Reporters Without Borders, India ranks 138th worldwide in press freedom index (press freedom index for India is 43.24 for 2018

The freedom of speech and expression under Article 19(1)(a) is a concept with diverse facets, both with regard to the content of the speech and expression and in the means through which communication takes place. It is also a dynamic concept that has evolved with time and advances in technology.

Freedom of Authors and Artists

The question which inevitably arises in cases where the government or court orders ban on literary works, following protests by religious or political groups or members of the public, is: where does one draw the line between protecting freedom of speech (of the author) on the one hand and the public interest on the other.

Free speech activists often argue that the right to free speech includes the right to offend. The problem with assessing whether a literary work is obscene is that it is inevitably a ‘moral’ question which depends on the subjective judgment of the court or the government. What may be obscene or offensive to a member of a particular community may not be obscene or offensive to those outside of that community, or in some cases, even to other members within that community.

Also, social mores change with time. Therefore, the definition of obscene is subjective and both context-and time-dependent.

* In 1988, the Indian government banned the import of Salman Rushdie’s The Satanic Verses under Section 11 of the Customs Act, 1962. 

* In 2003, the West Bengal government banned Taslima Nasreen’s book, Dwikhondito on the ground that the book would outrage the religious sentiments of the Muslim community. 

* In 2011, Three Hundred Ramayanas, an essay by renowned scholar, AK Ramanujan, was dropped from the history syllabus at Delhi University amid protests that the essay in recounting different versions of the Ramayana, offended Hindu beliefs.

Relevant legal provisions in India

The provisions which are frequently invoked while banning literary works in India are:

* Section 292 of the IPC: This section criminalises the sale of obscene books. Content is deemed to be objectionable if it is “lascivious or appeals to the prurient interest” or if it is likely to “deprave and corrupt” a person.

* Article 19(2) of the Indian Constitution: Under Article 19(2), reasonable restrictions may be placed on the right to freedom of speech and expression on specific grounds including public order, decency or morality.

* Section 153B of IPC: It is an offence under Section 153B to make or publish any assertion which causes or is likely to cause “disharmony or feelings of enmity or hatred or ill-will” among members of any religious or regional group or caste or community. Taslima Nasreen’s Dwikhandita was banned under section 153B.

* Section 95 of the Code of Criminal Procedure (CrPC): Section 95 of the CrPC empowers the government to declare publications (which contain matter punishable under section 153B) as forfeited and to issue search and seizure orders.

Freedom of Artists and Activists

Various artists and actvivists have arued for free speech and expression to express their art and thoughts, Various musicians, painters, poets and various other artists have time to time faced consequences and restrictions. Many a times various dramas and serials get banned on various grounds. 

Censorship or Restrictions on Freedom of Speech And Expression

In a modern State, absolute and unrestricted individual rights do not exist, because they cannot exist. Freedom is more purposeful if it is coupled with responsibility. Like any other freedom, the freedom of speech and expression has to be balanced with other social values. The liberty of the individual to do as he pleases even in innocent matters is not absolute. It must frequently yield to common good.Freedom of the press has to be reconciled with the collective interest of the society, which is known as “public interest”.

The reconciliation of the contest between power and liberty, between the claims of political society and the interests of individual is a perennial problem of political society which curiously persists irrespective of any difference in the form of Government. So, there are certain permitted prior restraints and restrictions on the freedom of the press, in the collective interest of society. Prior restraint means any kind of interference or control exercised by the State over the freedom of the press at any stage prior to publication of the alleged offending material.

Assignment - 2

Constitutionality of Media Trials in India

Trial by media is a phrase popular in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law.

During high-publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that regardless of the result of the trial the accused will not be able to live the rest of their life without intense public scrutiny.

The counter-argument is that the mob mentality exists independently of the media which merely voices the opinions which the public already has.

Participative media is considered as the ‘cornerstone’ of our democracy. Media acts as facilitator along with being an expediter on many matters including those affecting the collective conscience of society.

Indian media

The freedom of media has been recognized as well as protected by the Indian Supreme Court under Art. 19(1)(a) which is Right to freedom of speech. Indian media has come of age, from being exclusively operated by the State to the setup by corporate who are largely seen as professional and neutral in their coverage of the events. 

On its inception media was bestowed with a lot of freedom so that unbiased, thorough and fair reporting could be done on all the matters .The Supreme court in Indian Express Newspaper case made the following observations–“The expression “freedom of the press” has not been used in Article 19 but is comprehended in Article 19(1) (a). The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of the newspaper. There cannot be any interference in the name of ‘public interest’. The purpose of press is to advance the public opinion by publishing facts and opinion without which a democratic electorate cannot make responsible judgment. Freedom of press is the heart of social and political intercourse. It is the primary duty of the court to uphold the freedom of press and invalidate all laws and administrative actions which interfere with it contrary to the constitutional mandate

Sensationalism

With this increased role and importance attached to the media, the need for its accountability and professionalism in reportage cannot be emphasized enough. In a civil society no right to freedom, howsoever invaluable it might be, can be considered absolute, unlimited, or unqualified in all circumstances. The freedom of the media, like any other freedom recognized under the Constitution has to be exercised within reasonable boundaries. With great power comes great responsibility. Similarly, the freedom under Article 19(1) (a) is correlative with the duty not to violate any law[5].

In an increasingly competitive market for grabbing the attention of viewers and readers, media reports often turn to distortion of facts and sensationalisation. The pursuit of commercial interests also motivates the use of intrusive newsgathering practices which tend to impede the privacy of the people who are the subject of such coverage. The problem finds its worst manifestation when the media extensively covers sub judice matters by publishing information and opinions that are clearly prejudicial to the interests of the parties involved in litigation pending before the Courts

However, sensationalized news stories circulated by the media have steadily gnawed at the guarantees of a right to a fair trial and posed a grave threat to the presumption of innocence. What is more, the pervasive influence of the press is increasingly proving to be detrimental to the impartial decision making process of the judiciary. Such news stories cannot easily be defended under the auspices of freedom of expression

In recent times there have been numerous instances in which media has conducted the trial of an accused and has passed the verdict even before the court passes its judgment. Some famous criminal cases that would have gone unpunished but for the intervention of media, are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi rape case. The media however drew flak in the reporting of murder of Aarushi Talwar, when it preempted the court and reported that her own father Dr. Rajesh Talwar, and possibly her mother Nupur Talwar were involved in her murder, the CBI later declared that Rajesh was not the killer.

IMPACT OF MEDIA TRIALS

Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. Similarly, the persons in power should be able to keep the people informed about their policies and projects, therefore, it can be said that freedom of speech is the mother of all other liberties.[11]

In Printers (Mysore) Ltd. v. CTO the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy.

It therefore received a generous support from all those who believe in the free flow of the information and participation of the people in the administration; it is the primary duty of all national courts to uphold this freedom and invalidate all laws or administrative actions which interfere with this freedom, are contrary to the constitutional mandate.

a) MEDIA TRIAL vs. FAIR TRIAL

Trial by media has created a “problem” because it involves a tug of war between two conflicting principles – free press and free trial, in both of which the public are vitally interested. The freedom of the press stems from the right of the public in a democracy to be involved on the issues of the day, which affect them. This is the justification for investigative and campaign journalism

In Zahira Habibullah Sheikh v. State of Gujarat[20], 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.”

b) MEDIA TRIAL vs. RIGHT TO BE REPRESENTED

Through media trial, we have started to create pressure on the lawyers even — to not take up cases of accused, thus trying to force these accused to go to trial without any defense. Is this not against the principles of natural justice? Every person has a right to get himself represented by a lawyer of his choice and put his point before the adjudicating court and no one has the right to debar him from doing so. For an instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. A senior editor of a television news channel CNN-IBN called the decision to represent Sharma an attempt to “defend the indefensible”.

CONSTITUTIONALITY OF MEDIA TRIALS

The Supreme Court has stated that trial by press, electronic media or trial by way of a public agitation are instances that can at best be described as the anti-thesis of rule of law as they can lead to miscarriage of justice. In the opinion of the honourable court, a Judge has to guard himself against such pressure[73]. In Anukul Chandra Pradhan v. Union of India, the Supreme Court observed that “No occasion should arise for an impression that the publicity attached to these matters (the hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial”.

a) IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971:

Under the Contempt of Court Act, 1971, pre-trial publications are sheltered against contempt proceedings. Any publication that interferes with or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding, which is actually ‘pending’, only then it constitutes contempt of court under the Act. Under Section 3(2), sub clause (B) of clause (a) of Explanation, ‘pending’ has been defined as “In the case of a criminal proceeding, under the Code of Criminal Procedure, 1898 (5 of 1898) or any other law – (i) where it relates to the commission of an offence, when the charge sheet or challan is filed; or when the court issues summons or warrant, as the case may be, against the accused.”

Certain acts, like publications in the media at the pre-trial stage, can affect the rights of the accused for a fair trial. Such publications may relate to previous convictions of the accused, or about his general character or about his alleged confessions to the police. Under the existing framework of the Contempt of Court Act, 1971, media reportage, as seen during the

Aarushi Talwar case, where the press, had literally gone berserk, speculating and pointing fingers even before any arrests were made, is granted immunity despite the grave treat such publications pose to the administration of justice

b) PUBLIC PARTICIPATION:

Some scholars justify a ‘trial-by-media’ by proposing that the mob mentality exists independently of the media which merely voices the opinions which the public already has. In a democracy, transparency is integral. Without a free press, we will regress into the dark ages of the Star Chambers, when the judicial proceedings were conducted secretively. All these omnipresent SMS campaigns and public polls only provide a platform to the public to express its views. It is generating public dialogue regarding issues of public importance. Stifling this voice will amount to stifling democracy

Assignment - 3

Essay on RTI

Right to Information Act 2005 mandates timely response to citizen requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a– RTI Portal Gateway to the citizens for quick search of information on the details of first Appellate Authorities, PIOs etc. amongst others, besides access to RTI related information / disclosures published on the web by various Public Authorities under the government of India as well as the State Governments

Public Authorities

‘Public Authorities’ include bodies of self-government established under the Constitution, or under any law or government notification.  For instance, these include Ministries, public sector undertakings, and regulators.  It also includes any entities owned, controlled or substantially financed and non-government organizations substantially financed directly or indirectly by funds provided by the government. 

The Act has established a three tier structure for enforcing the right to information guaranteed under the Act.

Public Authorities designate some of their officers as Public Information Officers.  The first request for information goes to Central/State Assistant Public Information Officer and Central/State Public Information Officer, designated by the Public Authorities. These Officers are required to provide information to an RTI applicant within 30 days of the request.  Appeals from their decisions go to an Appellate Authority.  Appeals against the order of the Appellate Authority go to the State Information Commission or the Central Information Commission.  These Information Commissions consists of a Chief Information Commissioner, and up to 10 Information Commissioners

Objective of the Right to Information Act:

The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense. It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed. The Act is a big step towards making the citizens informed about the activities of the Government.

History

Right to Information (RTI) is an act of the Parliament of India which sets out the rules and procedures regarding citizens' right to information. It replaced the former Freedom of Information Act, 2002. Under the provisions of RTI Act, any citizen of India may request information from a "public authority" (a body of Government or "instrumentality of State") which is required to reply expeditiously or within thirty days. In case of matter involving a petitioner's life and liberty, the information has to be provided within 48 hours. The Act also requires every public authority to computerize their records for wide dissemination and to proactively certain categories of information so that the citizens need minimum recourse to request for information formally.[1]

This law was passed by Parliament on 15 June 2005 and came fully into force on 12 October 2005. Every day, over 4800 RTI applications are filed. In the first ten years of the commencement of the act over 17,500,000 applications had been filed.[2]

RTI is a legal right for every citizen of India. The authorities under RTI Act 2005 are called quasi-judicial authorities. This act was enacted in order to consolidate the fundamental right in the Indian constitution 'freedom of speech'. Since RTI is implicit in the Right to Freedom of Speech and Expression under Article 19 of Indian Constitution, it is an implied fundamental right.

Scope

The Act is applicable to the whole of India. It covers all the constitutional authorities, including executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature. It is also defined in the Act that bodies or authorities established or constituted by order or notification of appropriate government including bodies "owned, controlled or substantially financed" by government, or non-Government organizations "substantially financed, directly or indirectly by funds".

Private bodies

Private bodies are not within the Act's ambit directly. In a decision of Sarbjit roy vs Delhi Electricity Regulatory Commission, the Central Information Commission also reaffirmed that privatised public utility companies fall within the purview of RTI.[6] As of 2014, private institutions and NGOs receiving over 95% of their infrastructure funds from the government come under the Act. 

Political parties

The Central Information Commission (CIC) held that the political parties are public authorities and are answerable to citizens under the RTI Act. The CIC said that six national parties - Congress, BJP, NCP, CPI(M), CPI and BSP and BJD - has been substantially funded indirectly by the Central Government and have the character of public authorities under the RTI Act as they perform public functions.[8][9] But in August 2013 the government introduced a Right To Information (Amendment) Bill which would remove political parties from the scope of the law. Currently no parties are under the RTI Act and there has a case been filed for bringing all political parties under it. 

Amendment

The Right to Information Act 2019 passed on July 25 2019[11] modified the terms and conditions of service of the CIC and Information Commissioners at the centre and in states.[12] It had been criticized as watering down the independence of the information commissions[13]

Supreme Court judgement

Supreme Court of India on 13 November 2019, upheld the decision of Delhi High Court bringing the office of Chief Justice of India under the purview of Right to Information (RTI) Act.

RTI and Media

The role of media organisations assumes considerable importance in realising the objectives of the RTI Act. The media can not only play an important role in monitoring public service delivery by invoking provisions under the RTI Act, but can also facilitate in generating awareness and capacity building on RTI among the community. Thus the media performs an important role in the governance process by acting as a bridge between the community and public agencies.

The media can make a real difference to the lives of poor and disadvantaged people and aid in development by making people more aware of their rights and entitlements and enabling them to have access to government programs, schemes and benefits. Besides people can be made more aware of political issues which would help to stimulate critical thinking and debate. This creates pressure for improved government performance, accountability and quality. The media also helps in drawing attention to institutional failings – corruption, fraud, waste, inefficiency, cronyism, nepotism, abuse of power and the like. It fosters exchange of best practices, knowledge resources, access to better technology, and to better choices. A discursive space for citizens to dialogue with other actors in the governance process is also provided by the media.

Empowerment, social awareness & action and good governance are the three key areas through which the media can make a significant impact on development and poverty reduction. Firstly, the media gives voice to the needs and aspirations of the people and provides them access to relevant information. Thus, it cannot be denied that the media has a definite role to play in the empowerment of citizens. In all its varied forms, media has opened up the potential for new forms of participation. The access to information and accessibility of information has increased with growth of print and electronic media and the Internet. In contemporary times, the media is being used even by the vulnerable and marginalized sections of the society to make their voices heard. Secondly, the media can be effective not only in preserving freedom but also in extending it. The news media plays a decisive role in establishing a discursive space for public deliberations over social issues. The formative influence of the media on public attitudes, thoughts and perceptions is fundamental to the process of citizen engagement in public dialogue. Giving a voice to the poor also entails giving the poor people adequate opportunities to take initiatives for overcoming their problems. The media, through its role in shaping public awareness and action, can be a critical factor in facilitating sustainable development and poverty reduction. Lastly, a free media is a necessary requisite for good governance. As an information channel between corporations, government, and the populace, the media acts as a watchdog against government malfeasance, while at the same time fosters greater transparency and accountability. The media monitors public service delivery and reports on key issues to the public at large, thereby exerting pressure on public service providers. The media creates the right framework of incentives for good governance, by highlighting institutional failings to guard against as well as institutional successes for replication. It lets people voice diverse opinions on governance and reform, exposes corruption and malpractices and helps build public consensus to bring about change

An RTI regime can enable credible, evidence-based and factual reporting on key issues of public interest. It can enable the media to expose mal-administration, corruption and inefficiency and to propagate stories and instances relating to accountability, transparency, effective administration and good governance. By using the RTI Act, the media can play an important role in highlighting issues related to public service delivery and the efficacy and accountability of public officials. Under the RTI Act, the journalists & reporters, like citizens, can:

* Demand from the Government information pertaining to any of its departments

* Demand photocopies of Government contracts, payment, estimates, measurements of engineering works etc.

* Demand from the Government certified samples of material used in the construction of roads, drains, buildings etc.

* Demand to inspect any public development work that may be still under construction or completed

* Demand to inspect Government documents – construction drawings, records books, registers, quality control reports etc.

* Demand status of requests or complaints, details of time delays, action taken on Information Commission’s decisions etc.

The media thus can play a constructive role in the governance process by acting as a catalyzing agent for the implementation of the core provisions of the Act. 

Assignment - 4

The role of Chief Election Commission’s Office in regulating elections in India

The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India at national, state and district level. The body administers elections to the Lok Sabha, Rajya Sabha, state Legislative Assemblies, state legislative Councils, and the offices of the President and Vice President of the country. The Election Commission operates under the authority of Constitution per Article 324, and subsequently enacted Representation of the People Act. The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election. Being a constitutional authority, Election Commission is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the Union Public Service Commission and the Comptroller and Auditor General of India.

The main duties of the Election Commission are:

* Supervise, control and conduct all elections to Parliament and State Legislatures

* Set general rules for election.

* Prepare electoral rolls

* Determine territorial distribution of constituencies

* Give credit to political parties.

* Allot election symbols to political parties or candidates

* Appoint tribunals for the decision of doubts and disputes arising out of an election to Parliament and State Legislatures

Role of Election Commission of India

In its assigned role, the most crucial challenge before the Election Commission of India is to implement norms and the Model Code of Conduct to ensure free and fair elections in the country. Its existence and independence are necessitated by history, which has shown that democratic elections are not free from sabotage. Towards this end, it has been empowered to oversee political parties and candidates and take appropriate action in case of violations.

Structure of Election Commission of India

The secretariat of the Commission has 300 officials, and is located in New Delhi. The Deputy Election Commissioners and Director Generals are the senior-most officers in the secretariat. The President of India appoints the Chief Election Commissioner of India, who serves for six years and must retire at the age of 65. The Commissioner is generally a member of the Civil Services, and more often, of the Indian Administrative Services (IAS) or the Indian Revenue Services (IRS). He can be removed from his office through the process of impeachment, which needs to be carried out in the Parliament. The President of India can remove the other officers on the Chief Commissioner's recommendation.

The main functions of the Election Commission are as follows:

* The Election Commission of India is considered the custodian of free and fair elections.

* It issues the Model Code of Conduct in every election for political parties and candidates so that the dignity of democracy is maintained.

* It regulates political parties and registers them for being eligible to contest elections.

* It publishes the allowed limits of campaign expenditure per candidate to all the political parties, and also monitors the same.

* The political parties must submit their annual reports to the ECI for getting tax benefit on contributions.

* It ensures that all the political parties regularly submit their audited financial reports.

Some of the powers wielded by the Election Commission are as follows:

* The Commission can suppress the results of opinion polls if it deems such an action fit for the cause of democracy.

* The Commission can advise for disqualification of members after the elections if it thinks they have violated certain guidelines.

* In case, a candidate is found guilty of corrupt practices during the elections, the Supreme Court and High Courts consult the Commission.

* The Commission can suspend candidates who fail to submit their election expense accounts timely.

New Initiatives taken by Election Commission

In order to bring about various improvements and reforms in the election procedure, the ECI has taken numerous steps. Some of them are as follows:

* Electronic Voting Machines (EVMs) were introduced to improve reliability and efficiency. With the help of EVMs, chances of any discrepancies in terms of counting of ballots are almost nil. Moreover, the introduction of technology has just made a quick verdict possible as it just takes three to four days to declare the results.

* The website of the ECI was launched on February 28, 1998 to provide accurate information and instant results of the elections.

* Electoral Photo Identity Cards (EPICs) were issued in 1993 to prevent electoral fraud. From the 2004 elections, these were made mandatory.

A few more initiatives taken in recent years by the ECI are:

* New guidelines for broadcasting on State-owned electronic media.

* Inspection of instances of criminalisation in politics.

* Computerised electoral rolls.

* Simplification of account maintenance and filing.

* Measures for better enforcement of the Model Code of Conduct.

* An additional Model Code of Conduct, applicable only to news media, is yet to be formulated to ensure free, fair and unbiased media coverage of elections in India.

Budget & Expenses

The Election Commission of India and the Union Finance Ministry finalise the budget for the former's Secretariat, which is liable for an independent budget. The recommendations of the Election Commission are generally upheld by the Ministry of Finance. The concerned states and the Union Territories have to manage the expenses of elections being held, but it is the Union Government who bears the expenses of the Lok Sabha (parliamentary) elections entirely. In case of the legislative assembly elections, the concerned State bears the expenses. If the Lok Sabha (Parliamentary) and the assembly elections are taking place at the same time, the gross expenditure is equally shared amongst the Union Government and the concerned state(s).

Political Parties in India

India has a multi-party system, where political parties are classified as national, state or regional level parties. The status of party is accorded by the Election Commission of India, and the same is reviewed occasionally. All parties are registered with the Election Commission.

A special and unique election symbol is given to every registered party by the Election Commission. 

 Appointment & Tenure of Commissioners

* The Chief Election Commissioner and the Election Commissioner are appointed by the President of India.

* Each of them holds their offices for a period of 6 years or up to the age of 65 years, whichever comes first.

* They receive the same perks and pay as Supreme Court Judges.

* The only way a Chief Election Commissioner can be removed from office is upon an order of the President supported by the Parliament.

* The Election Commissioner or Regional Commissioner can only be removed from office by the Chief Election Commissioner.

 Advisory and Quasi-Judiciary Powers

* The Election Commission of India has advisory jurisdiction in terms of post-election ineligibility of sitting members of the Parliament and State Legislature.

* Cases where an individual is found guilty of malpractice at elections by the Supreme Court or High Courts are referred to the ECI for its opinion of the said person’s disqualification. In such cases, the judgement passed by the ECI is final and binding on the President of India or the Governor as per jurisdiction.

* The Election Commission of India also has the power to ban any candidate who has not lodged an account of election expenses by the deadline and as per the law.

* ECI can also remove or reduce the period of disqualification as per the law.

Assignment – 5

Note on Raj Narain vs. UPA

The State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333) was a 1975 case heard by the Allahabad High Court that found the Prime Minister of India Indira Gandhi guilty of electoral malpractices. Ruling on the case that had been filed by the defeated opposition candidate, Raj Narain, Justice Jagmohanlal Sinha invalidated Gandhi's win and barred her from holding elected office for six years.[1][2][3][4] The decision caused a political crisis in India that led to the imposition of a state of emergency by Gandhi's government from 1975 to 1977.[5]

The case of Indira Gandhi v. Raj Narain was a landmark judgment for many reasons. It was the first time in the history of independent India that a Prime Minister’s election was set aside. It was also the first time a constitutional amendment was struck down by applying the doctrine of basic structure triumphed in the Kesavanada Bharati case. It was also the first time that election laws were amended retrospectively to validate the nullified election of the Prime Minister.

General elections were held in India to the 5th lok sabha in 1971, wherein Indira Gandhi campaigned heavily for herself and her party and steered the Congress to come out victorious by securing 352 seats out of 518 seats in the said elections. Raj Narain, the leader of Ram Manohar Lohia’s SSP stood against Indira Gandhi in the elections of Rae Bareilly in Uttar Pradesh. Raj Narain was extremely confident of his victory in the elections, he ventured to such an extreme as to take out a triumph rally before the declaration of results.

Raj Narain was very disappointed when he lost the elections with a huge margin. Raj Narain did not accept the defeat and decided to appeal to nullify the election, accusing Indira Gandhi of adopting corrupt practices during her election campaigns. On 24th April, 1971, he challenged the Prime Minister’s election by filing a petition in the Allahabad High Court, putting allegations on Indira Gandhi of violating the election code enshrined in the Representation of the People Act of 1951 as her election campaigns were assisted by many government officers which also included the armed forces and local police. He also alleged that Indira Gandhi had used government vehicles for her election campaigning, and had distributed liquor and blankets amongst the voters so as to influence them and had also exceeded the campaign expenses limit which was Rs 35,000.

Background

After the Allahabad High Court declared Indira Gandhi’s election void on grounds of corrupt practices, Indira Gandhi made an appeal against the decision. The Supreme Court was on vacation at that time so she was granted a conditional stay. Thereafter, emergency was declared due to internal disturbance. In the meantime, Indira Gandhi passed the 39th constitutional amendment, which introduced Article 392A to the Constitution of India. Article 392A stated that the election of the Prime Minister and the Speaker cannot be questioned in any court of law, it can only be challenged before a committee formed by the Parliament itself. Thus, barring the Supreme Court from deciding Indira Gandhi’s case. Therefore, the constitutional validity of the 39th amendment was challenged.

Respondent’s Arguments

1. The respondent argued that the said amendment is violative of basic features of Constitution. The respondent relied on 7 judge bench decision in Kesavananda Bharti

2. The respondent relying on above 1973 decision contended that the Parliament under Article 368 is only competent to lay down general principles governing the organs of the state.

3. Since the determination is valid or not is a judicial prerogative under Article 329 & 136 respectively, the impugned amendment tends to take away the democratic structure of the nation.

4. The said amendment is illegal because during its passage in the house a number of opposition M.P.s were maliciously detained under detention laws.

5. The 39th Amendment is irrational & doesn’t pass the classification test as to why classification between members holding higher/lower post is necessary. This amendment is violative of Article 14 of the constitution.

6. The said amendment not only destroys basic structure, it also endangers rule of law & separation of power.

Judgment

The court gave its decision on November 7, 1975. It must be kept in the mind that this was the first case when the landmark decision of Kesavananda Bharti was applied by the apex court.The apex court upheld the contention of the petitioner and declared the impugned Clause 4 of Article 329A unconstitutional.

In the words of Mathew J. the said clause destroyed essential democratic feature of the Constitution viz. the resolution of an election dispute by ascertaining the adjudicative facts and applying the relevant laws. He was of the opinion that a healthy democracy can only function when there is possibility of a contest of free & fair elections. The impugned amendment destroyed that possibility therefore it is violative of Basic feature of Constitution.

Chandrachud J. found the said amendment violative of the principle of Separation of Power as it intently transferred a pure judicial function into the hands of legislature. Further, he was certain that the said amendment is also violative of Article 14 as it creates an unequal position for specific members against others.

Ray C.J. found another basic feature violated by the said amendment i.e. rule of lawwhereas Justice Khanna found the violation of norms of free & fair elections. The bench also found the said amendment violative of the principles of natural justice i.e. Audi Altrem Partem since it denies the right of fair hearing who is challenging the election of the members mentioned under the amendment. Democracy is a basic feature of Indian Constitution. The amending body i.e. Parliament is not empowered to pass a retrospective law validating an invalid election. This exercise is nothing but an example of despotic use of unrestrained and unfettered power.

The said amendment ought to transfer such determining powers to the Parliament. However, a legislative body cannot find adjudicative facts like a judicial body therefore, in the opinion of bench the impugned amendment is nail in the coffin of democracy.

Therefore, on the varied reasons the court struck down the 39th (Amendment) Act, 1975 finding it unconstitutional and violative of Basic Structure of the Constitution.

The decision in Indira Nehru Gandhi was a brave decision reminding the greedy parliament its place in the constitution. The Parliament was taught that they are not alone in this democracy and that Judiciary is there to uphold the Constitution and save Democracy from harmful actions of Parliament. The court in this case upheld the principle of Separation of Power which builds checks and balances in the democracy to check that there is no sort of encroachment and overstepping. The Government of the day in order to save itself from Allahabad High Court decision passed the draconian 39th amendment. It was of the view that amidst Emergency the judiciary will also kneel down and abandon its duty to uphold Constitution. However, the Judiciary resolved the crisis and struck down the draconian amendment passed to validated an invalid elections.

Assignment – 6

Impact, Justification and future of Media Regulation

Media regulation are rules enforced by the jurisdiction of law. Guidelines for media use differ across the world. This regulation, via law, rules or procedures, can have various goals, for example intervention to protect a stated "public interest", or encouraging competition and an effective media market, or establishing common technical standards. 

The principal targets of media regulation are the press, radio and television, but may also include film, recorded music, cable, satellite, storage and distribution technology (discs, tapes etc.), the internet, mobile phones etc.

Regulation refers to the whole process of control or guidance, by established rules and procedures, applied by governments and other political and administrative authorities to all kinds of media activities. Thus regulation is always a potential intervention in ongoing activities, usually for some stated "public interest" goal, but also to serve the needs of the market (for instance, by supporting competition) or for reasons of technical efficiency (for instance, setting technical standards). Regulation takes many forms, ranging from clauses in national constitutions and laws to administrative procedures and technical specifications. Regulation can be internal as well as external. In the former case, we are usually speaking of `self-regulation', where internal controls are applied, sometimes in response to public pressure or criticism from outside

Principal foundations

*      Balance between positive and negative defined liberties.

The negative defined liberties, legislating the role of media institutions in society and securing their freedom of expression, publication, private ownership, commerce, and enterprise, must be balanced by legislation ensuring the positive freedom of citizens of their access to information.

* Balance between state and market.

Media is at a position between the commerce and democracy.

These require the balance between rights and obligations. To maintain the contractual balance, society expects the media to take their privilege responsibly. Besides, market forces failed to guarantee the wide range of public opinions and free expression. Intend to the expectation and ensurance, regulation over the media formalized

There is no single or simple answer to the question `why regulate?' and often the surface reasons given conceal other purposes (especially the interests of the state). Even so, six general reasons for media regulation can be proposed, as follows:

• The management of what is arguably the key economic resource in the emerging `information society', with a very high dependence on all forms of communication.

• The protection of public order and support for instruments of government and justice.

• The protection of individual and sectional rights and interests that might be harmed by unrestricted use of public means of communication.

• The promotion of the efficiency and development of the communication system, by way of technical standardization, innovation, connectivity and universal provision.

• The promotion of access, freedom to communicate, diversity and universal provision as well as securing communicative and cultural ends chosen by the people for themselves.

• Maintaining conditions for effective operation of free markets in media services, especially competition and access, protection of consumers, stimulating innovation and expansion.

Media Regulation In India

Media in India is mostly self-regulated.  The existing bodies for regulation of media such as the Press Council of India which is a statutory body and the News Broadcasting Standards Authority, a self-regulatory organization, issue standards which are more in the nature of guidelines.  Recently, the Chairman of the Press Council of India, former Justice of the Supreme Court, Mr. M. Katju, has argued that television and radio need to be brought within the scope of the Press Council of India or a similar regulatory body. 

1. What is the Press Council of India (PCI)? The PCI was established under the PCI Act of 1978 for the purpose of preserving the freedom of the press and of maintaining and improving the standards of newspapers and news agencies in India. The PCI consists of a chairman and 28 other members.  The Chairman is selected by the Speaker of the Lok Sabha, the Chairman of the Rajya Sabha and a member elected by the PCI. The members consist of members of the three Lok Sabha members, two members of the Rajya Sabha , six editors of newspapers, seven working journalists other than editors of newspapers,  six persons in the business of managing newspapers, one person who is engaged in the business of managing news agencies, and three persons with special knowledge of public life.

2. The functions of the PCI include among others (i) helping newspapers maintain their independence; (ii) build a code of conduct for journalists and news agencies; (iii) help maintain “high standards of public taste” and foster responsibility among citizens; and (iv) review developments likely to restrict flow of news. 

3. The PCI has the power to receive complaints of violation of the journalistic ethics, or professional misconduct by an editor or journalist.  The PCI is responsible for enquiring in to complaints received.  It may summon witnesses and take evidence under oath, demand copies of public records to be submitted, even issue warnings and admonish the newspaper, news agency, editor or journalist.  It can even require any newspaper to publish details of the inquiry.  Decisions of the PCI are final and cannot be appealed before a court of law. 

4. The powers of the PCI are restricted in two ways. (1) The PCI has limited powers of enforcing the guidelines issued.  It cannot penalize newspapers, news agencies, editors and journalists for violation of the guidelines.  (2) The PCI only overviews the functioning of press media.  That is, it can enforce standards upon newspapers, journals, magazines and other forms of print media.  It does not have the power to review the functioning of the electronic media like radio, television and internet media. 

5. For screening films including short films, documentaries, television shows and advertisements in theaters or broadcasting via television the Central Board of Film Certification (CBFC) sanction is required.  The role of the CBFC is limited to controlling content of movies and television shows, etc.  Unlike the PCI, it does not have the power to issue guidelines in relation to standards of news and journalistic conduct. Program and Advertisement Codes for regulating content broadcast on the television, are issued under the Cable Television Networks (Regulation) Act, 1995.  The District magistrate can seize the equipment of the cable operator in case he broadcasts programs that violate these Codes. Certain standards have been prescribed for content accessible over the internet under the IT Rules 2011.  However, a regulatory body such as the PCI or the CBFC does not exist.  Complaints are addressed to the internet service provider or the host. Radio Channels have to follow the same Programme and Advertisement Code as followed by All India Radio.  Private television and radio channels have to conform to conditions which are part of license agreements.  These include standards for broadcast of content.  Non-compliance may lead to suspension or revocation of license. 

6. Today news channels are governed by mechanisms of self-regulation.  One such mechanism has been created by the News Broadcasters Association.  The NBA has devised a Code of Ethics to regulate television content.  The News Broadcasting Standards Authority (NBSA), of the NBA, is empowered to warn, admonish, censure, express disapproval and fine the broadcaster a sum upto Rs. 1 lakh for violation of the Code.  Another such organization is the Broadcast Editors’ Association. The Advertising Standards Council of India has also drawn up guidelines on content of advertisements. These groups govern through agreements and do not have any statutory powers. 

7. In 2006 the government had prepared a Draft Broadcasting Services Regulation Bill, 2006.  The Bill made it mandatory to seek license for broadcasting any television or radio channel or program.  It also provides standards for regulation of content.  It is the duty of the body to ensure compliance with guidelines issued under the Bill

Assignment – 7

Essay on sting operation

In law enforcement, a sting operation is a deceptive operation designed to catch a person committing a crime. A typical sting will have an undercover law enforcement officer, detective, or co-operative member of the public play a role as criminal partner or potential victim and go along with a suspect's actions to gather evidence of the suspect's wrongdoing. Mass media journalists occasionally resort to sting operations to record video and broadcast to expose criminal activity.[1]

A sting operation is an investigative exercise undertaken by media to uncover the malpractices prevalent in the society. It is an inseparable part of the modern news casting, albeit with questionable moral issues included.

1. These undercover operations embark to disentangle the administrative procedures by an agent who pretends to be a part of the game– by acting like a supplicant, a vulnerable candidate, a support-searcher or a potential bribe supplier.

2. Masterminding somebody under the lawful drinking age to request that a grown-up purchase an alcoholic beverage for them or conveying a snare auto (likewise called a honey trap) to get a car thief and recording them on tape are certain examples.

3. Another example might be a journalist pretending to be an interested party looking to get his work done in a government office by bribing the officials. Sting operations are full of inquiries of legitimacy, and objectivity that are hard to manage in light of the fact that the journalist is a common person loaded with his predispositions for or against somebody or something. Therefore, the rightfulness of a sting operation cannot be determined objectively as the journalist may have a bias towards or against a certain person that he might target. In addition, in the present world where video doctoring tools are easily accessible and widely used, the question of legitimacy of the sting operation audio/video is yet another issue for thought. The word 'Sting Operation' was first used in the movie ‘Sting’ in 1973 which depended on a plot incubated by two men to trap a third individual into carrying out a wrongdoing.

4.  The expression 'Sting' is also illustrative of media's power in a democratic set-up and how it can be both potent and venomous for the public at large; potent by exposing the evils, and venomous by infringing the fundamental right to privacy of an individual or potentially entrapping someone into accepting a bribe and thereby, causing corruption.

5. A few nations like US, UK and Canada have perceived sting operations completed by legal enforcement agencies as lawful techniques for gathering evidence.

6. However, there are no directions regarding the test for legality of sting operations in India and there is no nexus in decisions given by various courts, which requires an earnest need to address the issue.

Sting Operations: Positive or Negative 

Despite the fact that the freedom of press is not ensured in our constitution unequivocally, a few interpretations by the apex Court have held it as a basic part of our constitution.7 However, this freedom is not absolute and there are some sensible limitations.8 In the technological age, the electronic media has assumed control over the print media, and a huge number of individuals have access to and can be strongly influenced by the information published by media. Media has an incredible role to play as the fourth pillar of democracy.9 This is based on a simple equivalence relationship i.e. corruption cannot breed within the sight of transparency. The role of media involves uncovering callous and degenerate public servants to the eye of the omnipotent public in a democratic set-up and hence, undoubtedly, media is in its legitimate space while utilizing apparatuses of investigative journalism to make people familiar with the hideous underbelly of the society.10 However, occasionally, media, in its endeavors to secure efficient administration, over-reaches its assigned obligation of disseminating information and clashes with the judicial functions of law enforcement. On the premise of purpose, there can be a delegation of string operations as positive or negative. The positive are the ones in light of a legitimate concern for the overall population and planned to penetrate the cover of the government’s working procedure.11 The negative ones don't profit the general public, but are a sensationalized endeavor to build the viewership in the era of 'breaking news' by encroaching the privacy or sanctity of an individual or a body.

The Judicial Perspective vis-à-vis Sting Operations in India In India, it was ‘Tehelka’ that foreshadowed the act of sting operations and increased its following, prominence, and circulation to gigantic levels through these operations.13 The sting recordings of March 2001 demonstrated a few defense authorities, and government officials from the ruling party accepting bribes, which resulted in immediate administrative action that led to their ousting.14 India neither has a particular law administering the lawfulness of sting operations nor a judicial pronouncement laying down the guidelines for the regulation of sting operations. Besides the Cable TV Regulation Act15, which lays down the guidelines for the channels airing programmes, the Pre-natal Diagnostic Techniques Act is the sole authority that talks about sting operations and maintains the legitimacy of the same for the purpose of the Act. The Courts have decided every matter so far on the actualities of the case. There are no hard and fast rules to determine the different conditions under which the sting operation will be a legal method of obtaining evidence or a method against law. The Courts, while dealing with different situation have not been able to come to a consensus and there is no nexus between the decisions of various courts on similar situations pertaining to sting operations. The Courts on several occasion have held Sting operations to be a legal method of obtaining evidence16, while on some occasions have held them to be an inducement to crime17 or an invasion of the fundamental right to privacy.

The role of sting operations in deliverance of justice in India cannot be undermined. Media, as the fourth pillar of democracy, has a great role to play in a transparent democratic society driven by certain people with power elected by the public itself or chosen through open public service examinations. These officials get the much necessary autonomy in their work. However, complete detachment from the public interest, and furtherance of individual interest through their discretionary powers or actions behind closed doors, warrant regular check-up. In SP Gupta v Union of India19, “No democratic Government can survive without accountability and the basic postulate of accountability is that people should have the information about the working of the Government.” The public entrusts the media with the task of acting as a regulatory mechanism for these power-holders. Though the Indian constitution does not expressly guarantee the freedom of press as a fundamental right, various interpretations of the apex court under Article 19(1) (a) have enshrined it as a basic constituent of right to freedom of speech and expression.20 The media, therefore, has a right to impart and disseminate information in public interest in correspondence to the public’s right to know about the public acts performed by the public officials and the sting operations, aim at, nothing more than public interest.21 In various cases, the media made a special effort in public interest to get the haughty crooks penalized for their blameworthy activities.22 “I thank god and the media for helping me out in this long battle”, these words of the victim’s mother, in Nitish Katara23 murder case indicate the role played by the sting operations.24 In the disputable cash-for-queries swindle, the Delhi High Court endorsed the legality of the sting operations directed to uncover the misconduct of the Parliamentarians that led to the ousting of 11 members from their term in the office.25 The single judge bench of the Delhi High Court opined that such a privilege spilled out of the fundamental duty to treasure the noble ideals that inspired our struggle for freedom as under Article 51A (b)26, and making a pure and autonomous India is one such ideal.27 The apex court in RK Anand28 deferentially removed itself from meddling with the autonomy of media by dismissing the request to set down rules for sting operations stating that this would be a transgression of the media's privilege of the freedom of expression ensured under Article 19(1) of the Constitution. Therefore, the call for accepting sting operations as a legal method of obtaining evidence is merely an extension of the right to freedom of press as ensured through judicial activism in India. Therefore, obliteration of the concept of liberty of press through a proscription on sting operations by media due to isolated incidents of misuse of the power vested in the media is not a way out.

When a particular journalist goes undercover and plays to be a part of the scheme of things while trying to uncover the corruption in a particular department, he is simply resting on the allegations on and image of the public officials working in that department. Even if they were not involved in corruption before, this might be their first encounter with a person trying to bribe them and with such a lucrative offering at hand, they might accept the bribe; which will lead the media to the conclusion that the ghosts of corruption already haunted such department, even if they did not. You cannot hold a person guilty for a crime that he would not have committed, had he not been encouraged to do so. A sting operation aired by ‘Live India’, demonstrated Ms. Uma Khurana, a teacher, purportedly compelling a young student into prostitution.30 In the mayhem that took after, a few people physically assaulted her and even tore her clothes. The Court took suomotu cognizance of the matter and started proceedings where the Court discovered that the accused was innocent and a piece of the sting operation had been arranged dramatically.31 The court, relying on the decision in Keith Jacobson v. United States32, held that media in its endeavors to reveal truth in public interest ought not to go too far by turning to entanglement of any individual.33 The US Supreme Court had held that “in their zeal to enforce law, law protectors must not originate a criminal design, and then induce commission of the crime so that the government may prosecute.” 

If the allegations are baseless, the sting operations might as well serve as entrapment for the honest public officials. The question is one of public morality i.e., firstly, you induce a person into committing a crime by promising him a reward for breaking the law and then hold him guilty for accepting the bait. Scholars have suggested, every now and then, that the public officials are subject to wider scrutiny of the media in general interest and, therefore, there should be no entrapment charges on media for sting operations conducted against them. The term ‘public servant’ finds its definition in the Prevention of Corruption Act. However, one more aspect that requires contemplation is whether a sting operation is permissible when the public servant is not acting during the course of his duty; bringing in, the question of invasion of an individual’s privacy

There have been quite a few instances where media has encroached upon the right to privacy of an individual exposing his private life to the scrutiny of general public. The production of what a Mumbai newspaper asserted were photos of Kareena Kapoor and ShahidKapur sharing intimate moments, the revelation of Shakti Kapoor's casting couch controversy, and the video of Swami Paramahamsa in a compromising position with a Tamil actress, that ended her career, have all collectively added to the outcry for a more characterized right to privacy in the nation.40 Grave mishandling of innovative progress and the unhealthy rivalry in the field of news coverage has brought about the pulverization of the standard sense of duty expected in the noble profession.41 Wiretapping or telephone tapping, a part of sting operations, was held to be a gross violation of privacy, and as such regulated, both under a legislation42 and guidelines laid down in a judicial pronouncement43 . The right to express freely, which is the backbone of media, has been subject to abuse and the question of privacy in contrast to expression remains unanswered, with no legislation to regulate and balance the two rights.

The role of media has been in question, every now and then, in relation to running media trials before the actual hearing of a case in the court of law. Media trials become more influencing, particularly, when they happen because of a sting operation. The broadcast of sting operations happens in such a manner that a prejudice is set in the minds of the public.

Trial run by media does not only add prejudice against the accused but also does severe damage to the person’s reputation, even after his acquittal. A classic example of this would be Uma Khurana’s case44 where the court found that the sting operation was false. Though the accused was acquitted but the media trial following the sting, resulted in her termination and she was assaulted by the protesting mob.

The Constitution of India guarantees the right to a free and fair trial.51 When media broadcasts sting operations, the prejudice against the accused violates his right to fair trial. This fundamental right comes in clash with Right to Freedom of Speech and Expression, which is also a fundamental right.52 In such cases, it becomes the duty of the courts to develop progressive measures so that both the rights get appropriate space in the constitutional system. It is the media’s responsibility, which executes such trials. A journalist should not approach the affair in the question with an attitude of a prosecutor. While dealing with matters that are sub-judice, the media should have a fair, broad-minded, and balanced attitude.

CONCLUSION 

Sting Operations have been an incredible instrument in uncovering wrongdoing and defilement in the public arena. We have seen various situations where sting operations have assumed a noteworthy part in securing justice for all. Be that as it may, a line is required to be drawn between sting operations that assault privacy and those which reveal debasement and like others with a particular objective to secure the very soul of the Constitution of India. In any case, in the present circumstances where political corruption is at its apex, it is difficult to essentially discover which sting operations are politically invigorated, which are truly proposed to filter the social order, or which are truly the results of fabricated broadcast bolstered by different political gatherings, their corporate benefactors.

Assignment – 8

Short note on Media trials with relevant case studies and conclusion

Trial by media is a phrase popular in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law.

During high-publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that regardless of the result of the trial the accused will not be able to live the rest of their life without intense public scrutiny.

The counter-argument is that the mob mentality exists independently of the media which merely voices the opinions which the public already has.

Although a recently coined phrase, the idea that popular media can have a strong influence on the legal process goes back certainly to the advent of the printing press and probably much further ] This is not including the use of a state controlled press to criminalize political opponents, but in its commonly understood meaning covers all occasions where the reputation of a person has been drastically affected by ostensibly non-political publications

 Relevant Case studies

In the case of Zahira Habibullah Sheikh v. State of Gujarat The Supreme Court has held, “the principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices.... 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.” This right of fair trial may also be defeated if the media while reporting a matter use such a language which may have an effect to influence the mind of a Judge and control the judicial processes. Needless to remind that in recent times, in order to sensationalize the reporting and to increase its commercial value, the media starts naming and blaming the suspect or accused. Photographs and other materials in the form of interview etc. are published and shown along with public reaction. The problem is more visible when the matters involve big name and celebrities. In such cases media reporting can swing popular sentiments either way

PRIYADARSHINI MATOO CASE 

Santosh Kumar Singh, son of a senior IPS officer, was accused of raping and brutally killing Priyardarshini Matoo, a 25 year old law student, in 1996. In 1999, the trial court acquitted him quoting manipulation of evidence by influential father of accused. The Delhi High Court in 2006 held him guilty and awarded him death penalty since his guilt was proved “beyond any doubt by 282 This observation was made in R. Rajagopal & Anr. v. State of Tamil Nadu, (1994) 6 SCC 632 Page95 unimpeachable evidence,” including DNA fingerprinting. It is relevant to refer here to the remarks of the then Chief Justice of India, Justice Y. K. Sabharwal, who gave full marks to the media for being instrumental in spurring the judiciary into action in the instant case, which had been lying in cold storage for years

JESSICA LAL MURDER CASE 

The Manu Sharma, son of a wealthy politician in Haryana, was accused of killing Jessica Lal in 1999, because she refused to serve him liquor in a restaurant where she was working as a bar maid. A long and protracted trial followed which lasted seven years. In 2006 all the accused were set free due to lack of evidence. The case was reopened following public outcry publicized extensively in the media. In the immense uproar, hundreds of thousands of people e-mailed and sent text messages conveying their outrage on petitions forwarded by media channels and newspapers to the President. The prosecution appealed and the Delhi high court conducted proccedings on a fast track with daily hearings over a month. The Lower Court judgment was founded faulty in law, and Manu Sharma was founded guilty. He was sentenced to life imprisonment in December, 2006

NITISH KATARA MURDER CASE 

Nitish Katara , a young business executive was murdered by Vikas yadav, son of an influential politician of Uttar Pradesh. The trial court had held that Nitish’s murder was an honour killing because the family of the accused did not approve of the victim’s relationship with the sister of the accused the ensuing trial followed the path of similar cases which involve “ money and muscle power” in India. A number of respectable witnesses, including key friends of both the victim and the girl, repudiated their initial testimony. The person in the eye of storm, Bharti yadav, too retracted her initial verbal statements wherein she had admitted her relationship with the victim. However, owing to intense media scrutiny, and also the strength of the accused and his accomplice in May 2008. In the end, the victim’s mother, Neelam Katra, who fought the six year long legal battle, thanked the media for supporting a just cause.

OPERATION WEST END

Operation West End was the first sting operation done by Tehelka in 2001, an Indian news magazine known for its investigative journalism. It was done in order to make the murky defense deals of the then ruling party NDA public. The special correspondents of the magazine filmed several corrupt defense officials and politicians of ruling National Democratic Alliance (NDA) government including Bhartiya Janta Party then President Late Bangaru Laxman. The operation took seven and a half months to complete. The magazine created a fictitious London based arms manufacturing company known as West End International. The strategy adopted by the investigative journalists was to get in touch with a person in the lowest end of the defence chain and then move upwards. Therefore, the operation started with the Senior Section Officer P. Sashi who was posted in the Ministry of Defence. His desire to make money from arms dealers provided the starting point for journalists from Tehelka. After getting some monetary incentive, P. Sashi took the team to Brigadier Anil Sehgal’s house in New Delhi. Sehgal was then the Deputy Director in Directorate General of Ordnance and Supply (DGOS), an important army procurement post. Both these officials helped the team with two vital things; information about a defence product required by the Indian army and how to move ahead in order to sell their products. On 26 November 2000, the team was introduced to Deepak Gupta, the son of Rashtriya Swayamsevak Sangh (RSS) trustee R. K. Gupta. Deepak Gupta assured that he would help the UK based company bag the project and talked about his influence in the government. In the subsequent meetings he elaborated on his functioning and said that he worked from the Prime Minister's Office (PMO). On December 23, 2000,[4] journalists posing as representatives of the arms manufacturing company held their first meeting with the then BJP chief Bangaru Laxma. They then met him several times over the period of one week and promised to compensate him for his recommendation to the Defence Ministry of Supply regarding hand-held thermal imagers. On January 1, 2001, Laxman accepted One lakh rupees at BJP’s office for pursuing their proposal. On January 7, 2001, the final meeting held between the fake representatives and Laxman.

Aftermath

On March 13, 2001, Tehelka released video CDs of the sting operation that led to political storm in India. Subsequently, Bangaru Laxman had to resign from the position of BJP president. It emerged that the defence deals were not driven by considerations of national security, but by the greed of political and bureaucratic people. The defence minister George Fernandes and his party president Jaya Jaitly resigned. Mamata Banerjee, an important ally of the coalition quit the government.

The government booked Tehelka under many sections and used Inland Revenue, Enforcement Directorate and Intelligence Bureau but could not find anything. Investors of the website were also investigated and Tehelka’s financer Shanker Sharma was imprisoned without any charge. The journalists who carried out the investigation were also imprisoned.

Controversy

The investigation into the sting operation took a dramatic turn when it was revealed that prostitutes were supplied to three defence officials.Both Bhartiya Janta Party (BJP) and Samata Party condemned it and raised the questions on ethical side of investigative journalism. However, Aniruddh Bahal, the journalist who was a part of the operation said, “When the demand came from armymen (to have prostitutes) we were foxed. We resisted it. We were baffled. But the demand was so forceful we could not proceed further without catering to their demand.” 

CASTING COUCH

India TV aired its special sting operation programme on casting couch in Bollywood and TV industry. Casting couch became an important part of sting operations by prominent media channels. Casting couch cases were exposed by sting operation during this time.

In another case, on April 24, 2014, a Supreme Court bench presided over by then Chief Justice Sathasivam held that the sting operations were not the “legal method of law enforcement”. The Court said that the “Stings” which were deceptive operations, raised ethical and moral questions, as the victim, who is otherwise innocent, is “lured” into committing a crime through means which are “culpable”. In this case, a former minister was lured into accepting bribe by a few individuals.

Ethical Righteousness

Sting operations are fraught with moral and ethical concerns. Questions have been raised as to whether it should be allowed to provoke a crime which otherwise would not have occurred.

R Justice P Sathasivam stated that “Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement”.

Supreme Court further added that,“Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act”.

There is another moral issue that crops up with the operation of stings. With great power comes great responsibility. The freedom of the press is implied in the freedom of speech and expression provided in Article 19(1)(a) of the constitution. Every institution is vulnerable to the point of abuse and every liberty, if left unchecked and unbridled, may lead to disorder and anarchy. Sting operations are sometimes conducted only to act as catalyst for the TRPs of the channel. The carrying put of sting operations may be an expression of the freedom of the press but it also carries a duty to respect the privacy of others.

LEGALITY IN INDIA

Sting operations have not been explicitly mentioned in any of our laws. There are no acts that govern such operations. Though there have been certain judicial pronouncements which pertain to specific cases, no judge has so far laid down rules or laws which guides such acts of the media. This does not mean that there is no remedy available for the aggrieved. A person can approach the courts under different laws to protect his rights and freedom. For instance, wire trapping, which is used as a part of a string operation, is regulated under the Telegraph Act of 1885.

In People’s Union for Civil Liberties v. Union of India, the Supreme Court made a decision which says that wiretaps are a “serious invasion of an individual’s privacy”. Apex Court also laid out guidelines for wiretapping by the government, which define who can tap phones and under what circumstances. Only the Union Home Secretary, or his counterpart in the state, can issue an order for the tap, that also when it has been sufficiently proved that the information could not be sought by any other method.

Though there is absence of an explicit law on the legality or otherwise of the sting operation, Delhi High Court in Aniruddha Bahal v. State  up held stinging on the ground that it becomes necessary in order to realize the ideals of freedom struggle, a cherished aspiration enshrined in article 51A(b) of the Indian Constitution. The High Court said that right to sting, as it were, was an integral part of freedom of speech and expression especially in the context of striving towards a corruption free society. However, the view of the Hight Court is not uniformly shared by the other courts. The much-awaited Press Council guidelines on sting operations are yet to see the light of the day.

Concerns arise about the right to privacy. Right to privacy has been granted to the citizens of India under Article 21 – right to life and liberty. It has also been recently upheld by the Supreme court in the Puttaswamy case. The press cannot claim absolute freedom of expression under Article 19(1)(a) as it is limited by Article 19(2) which protects public interest and decency. Here, the difference lies between what constitutes a private and a public affair and the burden will be on the prosecution to prove that interference in his private life has been committed.

Conclusion

The Judiciary and the Media are the third and fourth pillars respectively of a Democratic set up. Both are indispensable for the smooth functioning of the system. While the former should duly regard the Freedom and Right of the latter to cover and disseminate news about court proceedings in an open justice system, the latter on its part also ought to show its due diligence and extreme caution while reporting the same so as to preserve the sanctity of the former as well as for ensuring a free and fair trial. Any confrontation between the two over Reportage of news in sub-judice matters is indeed unwarranted. On the contrary, they both rather ought to work in tandem respecting each other’s domain and independence. Though media act as a watchdog and act as a platform to bring people voice to the notice of society and legislatures. From the above account it becomes clear that the media had a more negative influence rather than a positive effect (except for a few exceptions here and there). The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event. Somehow, trial by media has no doubt assumed gigantic proportion. On one hand we have some famous criminal cases which would have gone unpunished but for the intervention of media, while on the other hand, media has drawn flak for pre-empting the court as well as for irresponsible and erroneous reporting. At times they hype the matter which disturbs the proceedings. They have fair right to comment on judgments, but commenting during the trial vitiates the very purpose of justice. "After all, judges too are human beings and they get distracted when they read the comments on the cases they are hearing.

Assignment – 9

Live Reporting and its criticism in India.

News broadcasting is the medium of broadcasting of various news events and other information via television, radio, or internet in the field of broadcast journalism. The content is usually either produced locally in a radio studio or television studio newsroom, or by a broadcast network. It may also include additional material such as sports coverage weather forecasts, traffic reports, commentary, and other material that the broadcaster feels is relevant to their audience.

Live television is a television production broadcast in real-time, as events happen, in the present. In a secondary meaning, it may refer to streaming television over the internet. In most cases live programming is not being recorded as it is shown on TV, but rather was not rehearsed or edited and is being shown only as it was recorded prior to being aired. Shows broadcast live include newscasts, morning shows, awards shows, sports programs, reality programs and, occasionally, episodes of scripted television series.

Live television was more common until the late 1950s, when videotape technology was invented. Because of the prohibitive cost, adoption was slow, and some television shows remained live until the 1970s, such as soap operas. To prevent unforeseen issues, live television programs may be delayed, which allows censors to edit the program. Some programs may be broadcast live in certain time zones and delayed in others.

Media ethics largely covers four broad aspects namely – truth & authenticity, sensationalism, conflict of interest and appropriateness of media contents. Any compromise on any of these tenets in the garb of freedom of speech and expression can have extremely detrimental effects on the thought process of the society. Truth and authenticity are the two prime principles of ethics that form the basic platter for any kind of media content. It covers not only the commitment to tell the truth without fear or favor, but also to resist from spreading half-truth or made-up information specifically intended to deceive the audience. 

At a time, when the entire media fraternity is regarded as the fourth pillar of a robust and thriving democracy, it is imperative upon the conscientious section of society to ponder upon the need for accountability and self-restraint in this arena. In the last few years, there had been plentiful of instances where media overreach and hyper- activism had caused wilful influence and unwarranted media goof-ups.  The live coverage of 26/11 Mumbai attacks by media houses came under extensive criticism for prioritizing vested commercial interests over national security.

The undue competition among themselves in showing exclusives on minute-to-minute basis had nearly jeopardized the strategic planning of the security forces out there. Even across the border, the wall-to-wall coverage of Nepal earthquake had come in for severe denunciation for the alleged disaster tourism and had brought disrepute to the entire fraternity. These two instances clearly violated the two ethical concerns of sensationalism and appropriateness of media contents. Notwithstanding with the authenticity and due diligence shown in the act, the scintillating and chilling effects coming from such human tragedies proved extremely embarrassing and eye-opening for the media.

The selective attention and distortion of media contents exhibited in the TV shows is tantamount to breach of ethical standards. The irrelevant obsession with the corridors of power in Delhi at the cost of ground realities in the farthest corners of the country is totally unprofessional. This may seem contrary to the freedom of expression, but it carries the essence of moral obligation of journalism. The classic example of this preferential treatment was seen last year when non-stop coverage of high profile Sheena Bora murder case overshadowed the plight of flood victims in Chennai and Assam. The list is exhaustive and disappointing at the same time.

The eve-teasing incident of Jasleen Kaur that was much sensationalized and the morphed anti- India sloganeering video in JNU case was portrayed as twisted truth in the media which resulted in an extensive media trial in an aggressive, intimidating and brow-beating style treating the accused as guilty within no time. When outrage on beef consumption and sloganeering by fringe outfits was preferred to be aired on national media to critical issues like rising inflation and the farmer suicides, the gap in credibility widened. 

The Noida murders of teenage girl Aarushi Talwar and middle-aged Hemraj—live-in domestic help at the Talwars’ home—took place on May 16, 2008. Media reports, primarily on account of the CBI innuendos, had by now moved into the realm of certainties, resulting in widespread outrage against the Talwar couple though the reported, debated, and dramatized obviousness of the Talwars’ guilt had yet failed to produce any evidence. The media routinely insinuated though that the Talwars had influenced the investigation. The Talwar story lingered on primetime for a long while live footage dominated the reportage when the story appeared on prime time, far more disturbing were the reconstructed enactments, liberally mixed with old footage, to extend the life of the story beyond primetime. Some of these enactments were used in support of news stories, such as morphed footage suggesting a fourteen-year-old taking her clothes off to speculate about what family secrets might have led to Aarushi’s “honor killing.

Coverage of the 67-hour Mumbai terrorist attacks, brought unprecedented condemnation, especially of 24-hour television news channels. Critics described it as "TV terror" for showing gory scenes, being too aggressive, and often reporting incorrect information as fact. In the following days, critics say, many Indian journalists were overly dramatic, sensationalist and quick to report live "exclusives" of unconfirmed rumours. Many said that TV anchors were overwrought and quick to blame Pakistan for the attacks. “It’s high time we realize and accept that we are at fault," said Shishir Joshi, the editorial director of Mid-Day, a Mumbai newspaper. "We did well getting into the line of fire, but from an ethical point of view we screwed up big-time." Recognizing the missteps in coverage, National Broadcaster Association revealed a new set of rules for the industry. The guidelines ban broadcasting of footage that could reveal security operations and live contact with hostages or attackers.

Television coverage of the attacks showed dead bodies and hostages trapped in rooms, revealed commando operations and positions and reported the location of hostages at the Taj Mahal Hotel. Senior news editors are accused of playing martial music between updates and providing airtime to Bollywood actors and other members of Mumbai's chatterati. One station even aired a telephone conversation with one of the 10 gunmen

"One of the ill effects of unrestrained coverage is that of provoking anger amongst the masses," said K.G. Balakrishnan, then chief justice of the Supreme Court of India, during a conference on terrorism in New Delhi.

The relatively young medium of 24-hour television news received the lion's share of criticism. They were also  criticized for focusing on the sieges at the Taj and Oberoi hotels — domains of the country's wealthy and ruling elite — while largely ignoring the train station that was littered with the bodies of migrant workers. Fifty-eight people were gunned down there. "A media crackdown is not the answer — self-regulated media is at the core of Indian democracy," said Arnab Goswami, the editor-in-chief of the Times Now television channel. "This incident should highlight the need for government and media to work together."

The media has criticized both local and federal government for failing to set up fixed police lines around hostage sites and for not providing regular press briefings.

* The Internet has brought about profound and rapid changes in the structuring, delivery, and economics of news media.

o Immediate news delivery has become the norm.

o The pressure for immediate delivery increases the tension between factual accuracy and “getting there first” in news reporting.

o Because people can get instant news for free online, subscriptions to print media are down, and so are advertising revenues.

* Most journalistic codes of ethics are based on the premise that the news media exists to provide citizens with the information they need to function in a free and democratic society. Journalists should conform to several ethical obligations:

o Present news stories that inform and serve the needs of citizens.

o Present issues fairly.

o Present stories in a way that addresses their complexity.

o Present diverse perspectives.

o Monitor government and corporations.

* Responsible journalism

o ensures accuracy (even if it means causing delays);

o reports the truth;

o stays loyal to citizens by putting the public interest above all else;

o is protective and sensitive to those involved in the news;

o remains objective and presents information in a neutral way; and

o allows for commentary and opposition.

* All news stories contain some bias because of the diversity of journalists’ perspectives. While the news media is often criticized for representing a political bias in reporting, ethical journalists always strive to present issues in a fair and comprehensive way.

 

Assignment - 10

Ethical issues in social media and related laws

Social media are interactive computer-mediated technologies that facilitate the creation or sharing of information, ideas, career interests and other forms of expression via virtual communities and networks. The variety of stand-alone and built-in social media services currently available introduces challenges of definition; however, there are some common features:

Social media tools usage has grown extremely fast in the past ten to fifteen years leading to quick exposure of many firms and industries.  The scope and speed of social media creates information that is available almost instantaneously at a global scale.  Social media has created a synergy between personal and business lives of users as companies make use of social media for personal reasons and vice versa.

What is Online Social Networking? Online social networking is the use of dedicated websites or application in order to interact with other people who also those social networking sites having same interests or knowing you from other circles, groups or communities. Social networking is the basis of a society and it was always possible in person but in this era of high speed data transmission social networking has evolved through internet and has added different colors and flavors according to the needs of time. There are plenty of features being offered by social networking sites (SNS) which include making your profile, finding people with mutual interests, sharing with your circles or groups, interacting with people in your groups and getting the information shared by other people.

As Albert Schweitzer, German Nobel Peace prize winning mission doctor and theologian had remarked “The first step in the evolution of ethic is a sense of solidarity with other human beings”.

Ethics is a code of values, which govern our lives, and are thus very essential for moral and healthy life. In the context of the press, “Ethics” may be described as a set of moral principles or values, which guide the conduct of journalism. The ethics are essentially the self-restraint to be practised by the journalists voluntarily, to preserve and promote the trust of the people and to maintain their own credibility and not betray the faith and confidence of the people. The media all over the world has voluntarily accepted that code of ethics should cover at least the following areas of conduct. 

i. Honesty and fairness; duty to seek the views of the subject of any critical reportage in advance of publication; duty to correct 4 factual errors; duty not to falsify pictures or to use them in a misleading fashion; 

ii. duty to provide an opportunity to reply to critical opinions as well as to critical factual reportage; 

iii. appearance as well as reality of objectivity; some codes prohibit members of the press from receiving gifts’ 

iv. respect for privacy; 

v. duty to distinguish between facts and opinion; 

vi. duty not to discriminate or to inflame hatred on such grounds as race, nationality, religion, or gender; some codes call on the press to refrain from mentioning the race, religion or nationality of the subject of news stories unless relevant to the story; some call for coverage which promotes tolerance; 

vii. duty not to use dishonest means to obtain information; 

viii. duty not to endanger people; 

ix. general standards of decency and taste; 

x. duty not to prejudge the guilt of an accused and to publish the dismissal of charges against or acquittal of anyone about whom 5 the paper previously had reported that charges had been filed or that a trial had commenced.

Ethical dilemmas

With the rise of Online Social Networking, the ethical dilemmas are growing in number including violation of privacy, misrepresentation, bullying and creepiness. When the consumers are getting the facility of relatively unrestricted social communications they are becoming more vulnerable to deception and scams too at the same time which has become the reason of attention for Social Networking Ethics. Few ethical dilemmas faced when different people use social networks are given below:

Invasion of privacy 

If the actions that break the law or terms of privacy of any user of social network harms that individuals personal or professional credibility should be considered unethical. The invasion of privacy would include any non-permissive approach taken to get any kind of personal or any other kind of information about an individual which can harm him or affect him in any sense. While discussing social media ethics, behavioral targeting is a questionable area to consider. The advertisers tracking our shopping behaviors and click through patterns to use that data in retargeting campaigns. The positive point is that the viewers may appreciate the relevance of the material being advertised to them but this is a kind of invasion of privacy. A very similar situation occurs when marketers give their email lists to Facebook to use custom audience feature. They match those lists to the emails which are registered with them for targeting.

Spamming 

Over-publicizing unasked promotional messages is also considered as an unethical act based on how this is being done. In spamming users are usually bombarded with some kind of information which does not interest them or even if it does, it is too extensive to be swallowed. In this situation, the user’s relative information which he may be needing gets under the pile and may get ignored because of that useless pile of spamming which is obviously unethical from user’s perspective.

Public Bashing 

While using social networks people think that they are private and they can express anything they want to but they are not as private as they think. Disparaging your competitors in SNS (social networking sites) is considered unethical because of its broad range of negative impacts. Once you have posted something, it is not yours anymore and it can go viral as fast as a fire in the forest without asking for your permission which then can’t only affect your reputation but also the person or company you were disparaging about, so much. This kind of cases can also raise a risk for legal lawsuits

Dishonesty and Distortion 

There is no fair enough method to validate the honesty and authenticity of social networking activities of users. The intensions of social media usage include transparency of communications and other activities posts through SNS. It is unethical to be dishonest about anything even on social networks. So, if you will make dishonest claims about yourself or anything else or go on commenting offensive material, it is going to affect yourself or your company at the end. By doing such activities you are jeopardizing your personal reputation and your company’s name. So, we should all keep ethics in front of use even while using social media.

Improper Anonymity and Distorted Endorsements 

If one represent himself with wrong affiliations, credentials or expertise, it is unethical to become anonymous but showing yourself to be someone different than you are. There are people who provide companies with their anonymous feedbacks which are not true and it has caused a lot of damage to companies by the stories of consumers of their products by fake stories. Hiring people to comment your favorable or fabricated stories about your company or your products are also considered unethical. Some employees are also found guilty of exaggerating competitive deficiencies.

Misuse of free expertise and contests 

With the increasing extensive use of Facebook contests and other crowdsourcing for soliciting design ideas, the participants have the risk of making their secrets open with no reward. Most of the times, design ideas are rewarded to the most profitable partners of the social network sponsor leaving many with unrewarded work. This abuse is especially unethical if the sponsor knowingly gathers superior design ideas from contestants they have no intention of compensating.

Opportunism 

In the objective of providing the communities of social networking sites with contributions to their cause, the social media marketers provide content that subliminally walks the user at a self-serving path. These actions can be regarded as unethical or may be unprofessional based on their extent of deception

Legal Provisions:

 In India, the legal implications must be viewed in accordance with the law of land e.g. RTI Act, IT ACT 2000 & IT Amendment Act 2008 etc as also rules and regulations made thereunder. These policies must be circulated internally to ensure uniformity of response. 

Some of the key sections and their implications that must be kept in mind are as under: 5.1.3.5.1. When Government department provides such social media facilities on its network, receives, stores or transmits any particular electronic record on behalf of another person or provides any service with respect to that record, they become intermediary under Section 2(1)(w) of the amended Information Technology Act, 2000. 

Section 79 of the amended Information Technology Act, 2000 provides the broad principle that intermediaries like Government departments providing social media facilities are generally not liable for third party data information or communication link made available by them. However this exemption from liability can only be applicable if the said Government department complies with various conditions of law as prescribed under Section 79 of the amended Information Technology Act, 2000. 

The said conditions which need to mandatorily complied with the Government department to claim exemption for any third party data information or communication link made available or hosted by them in connection with social media facilities made available by the said department on their network are as follows: 

• The function of the Government department is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or hosted 

• The Government department does not- Page 18 of 38 (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission 

• The Government department observes due diligence while discharging its duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. 

• That the Government department as intermediary must not conspire or abet or aide or induce, whether by threats or promise or otherwise in the commission of the unlawful act. 

• That the Government department must immediately after receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the Government department is being used to commit the unlawful act, must expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

 • The Government department must also comply with all applicable rules, regulations and notifications in regard to their activity of providing social media facilities on its network. • That the Government department complies with the Information Technology (reasonable security practices and procedures & sensitive personal data or information) Rules, 2011. 

• That the Government department also complies with the Information Technology (Intermediary guidelines) Rules, 2011. 

• That the Government department also implement reasonable security practices and procedures as envisaged under Section 43A of the amended Information Technology Act, 2000.

Assignment – 11

Write a short note on sedition

Sedition is overt conduct, such as speech and organization, that tends towards insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent towards, or resistance against established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition.

History

The section related to sedition initially had its place in the code, as Section 113, when Thomas Babington Macaulay drafted the Penal Code in 1837. However, for reasons unknown, it was omitted from the actual Code. It was finally added in 1870 on the suggestion of James Fitzjames Stephen, at the time handling legal issues in the colonial Government of Indian.[2] Due to increasing Wahabi activities, and fearing that Muslim preachers would incite religious war in the Indian subcontinent, the Raj introduced this section under the title "Exciting disaffection".[3]

Stephen's version of 1870 was amended to a large extent through IPC Amendment Act of 1898. The current section stands very much similar to this 1898's section; however minor alterations were made at various points in India's colonial and post-colonial history—in 1937, 1948, 1950, and by Part B States (Law) Act, 1951

Section 124A. Sedition

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

* Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

* Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

* Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Section 124A of the Indian Penal Code lays down the punishment for sedition. The Indian Penal Code was enacted in 1860, under the British Raj. Section 124A forms part of Chapter VI of the Code which deals with offences against the state. Chapter VI comprises sections from 121 to 130, wherein section 121A and 124A were introduced in 1870. The then British government in India feared that Muslim preachers on the Indian subcontinent would wage a war against the government. Particularly after the successful supression of Wahabi/Waliullah Movement by the British, the need was felt for such law. Throughout the Raj, this section was used to suppress activists in favour of national independence, including Lokmanya Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned. The section kept drawing criticism in the independent India as well for being a hindrance to the right to free speech.

* In 2010, writer Arundhati Roy was sought to be charged with sedition for her comments on Kashmir and Maoists. Two individuals have been charged with sedition since 2007. Binayak Sen, an Indian doctor and public health specialist, and activist was found guilty of sedition. He is national Vice-President of the People's Union for Civil Liberties (PUCL). On 24 December 2010, the Additional Sessions and District Court Judge B.P Varma Raipur found Binayak Sen, Naxal ideologue Narayan Sanyal (politician) and Kolkata businessman Piyush Guha, guilty of sedition for helping the Maoists in their fight against the state. They were sentenced to life imprisonment, but he got bail in Supreme Court on 16 April 2011. 

* On 10 September 2012, Aseem Trivedi, a political cartoonist, was sent to judicial custody till 24 September 2012 on charges of sedition over a series of cartoons against corruption. Trivedi was accused of uploading "ugly and obscene" content to his website, also accused of insulting the Constitution during an anti-corruption protest in Mumbai in 2011. Trivedi's arrest under sedition has been heavily criticised in India. The Press Council of India (PCI) termed it a "stupid" move. 

* In February 2016, JNU student union president Kanhaiya Kumar was arrested on charges of Sedition & raising voice for the Tukde Tukde Gang under section 124-A of Indian Penal Code (which was part of the sedition laws implemented by the British Rule). His arrest raised political turmoil in the country with academicians and activists marching and protesting against this move by the government. He was released on interim bail on 2 March 2016 for a lack of conclusive evidence. 

* On 17 August 2016, Amnesty International India was booked in a case of "sedition" and "promoting enmity" by Bengaluru police. A complaint was filed by ABVP, an all India student organisation affiliated to Nationalists RSS.

* In September 2018, Divya Spandana, the Congress Social Media chief was booked for sedition for calling Narendra Modi, the prime minister of India, a thief. On 13 January 2019, The Delhi Police filed a chargesheet on Monday against former Jawaharlal Nehru University Students' Union (JNUSU) president Kanhaiya Kumar and others in a sedition case lodge in 2016. 

* On 10 January 2019, a sedition case was registered suo-motto against Noted Cambridge Scholar and Assamese Intellectual Dr Hiren Gohain and 2 others for their remarks against the Citizenship (Amendment) Bill. Dr. Gohain (80) called the move “a desperate attempt by a cornered government.

* Binayak Sen: A pediatrician by profession, Sen Was accused of sedition by Chhattisgarh govt for allegedly supporting Naxalites.He, however, was granted bail on April 15, 2011, by the Supreme Court of India which said that no evidence of sedition was produced against the accused by the Chhattisgarh government.

* Praveen Togadia: Rajasthan govt slapped sedition charges on the Fire brand VHP leader in 2003 after he defied a state ban distributing tridents to Bajrang Dal members. The charges include an attempt "to wage a war against the nation." As of August 2013, Togadia had faced 19 criminal cases for making hate speeches, the maximum number of such cases for any one in the country. 

* Simranjit Singh Mann: The Shiromani Akali Dal-Amritsar president was as charged with four different cases of sedition. Mann had raised pro-Khalistan slogans on June 6, 2005 in the golden temple complex on the 21st anniversary of Operation Blue Star. Mann was named in the assassination of former prime minister Indira Gandhi, but investigations could not substantiate the charges and hence he was not prosecuted in that case

* Akbaruddin Owaisi: Majlis-e-Ittehadul Muslimeen MLA Akbaruddin Owaisi was slapped with the charge of sedition by the district police of Karimnagar, for the purported hate speech he delivered at Nirmal on December 22, 2012.

Criticism

In post-independence India, Section 124A came under criticism at numerous intervals, being singled out for its curbing of free speech. When the First Amendment of the Constitution of India was passed in 1951, Prime Minister Jawaharlal Nehru proposed to "get rid of it [Section 124A]" as written, and favoured handling sedition-related by other means. In 2018, the Law Commission of India published a consultation paper that asked for a possible amendment or repeal of the law. During the 2019 Indian general election, the opposition Indian National Congress (INC) included a specific proposal to abolish Section 124A in their manifesto. However, while the INC-led United Progressive Alliance had been in power (2004–2014), the section had remained intact and was used to file charges on various citizens; following 2012-2013 protests against Kudankulam Nuclear Power Plant in Tamil Nadu, an "astonishing number" of citizens faced trial under Section 124A: 23,000 were in temporary custody, of whom 9,000 were arrested only for sedition. Several opinion-makers have called for the abolishing of sedition laws in the context of the 2016 protests at the Jawaharlal Nehru University.