Association of Indian Law Institute Alumni (hereinafter AILIA) with Indian Law Institute (hereinafter ILI) conducted their second webinar on 27th May 2020, in the series of Wednesday Webinars on Covid-19 with the below mentioned panelist.
More than 72 participants joined for the webinar included academicians, lawyers and students
ISSUES COVERED
The Role of the government and the freedom of the press under Article 19(1)(a) of the constitution of India during the time of COVID-19 crisis.
Effective strategies for ensuring accountability in the profession, reduction of stigma, prejudice, discrimination and cutting of misinformation and disinformation, particularly during the time of COVID-19 crisis.
PEOPLE’S RIGHT TO KNOW & THE MEDIA
The first distinguished Speaker Mohan Parasain was invited to give his opinions on the issue. He discussed the concept of ‘State of Exception’ given by an Italian philosopher Giorgio Agamben. Agamben talks about the bio-political power that the state acquires in a state of exception and tries to continue with it even when the circumstances of the state of exception are over.
Dr Parasain observed that the point of concern today should be that when special laws like the Disaster Management Act are invoked all over the world creating a state of exception.
The two values which are in conflict, relevant for our topic are media freedom and reasonable restrictions.
The first one claims its legitimacy from people’s right to know and the second one is actually ingrained in the right to know and freedom of speech itself. Because people’s right to know includes people’s right to know the truth and that gives the power to the government to regulate media.
He highlighted that certain media houses do not think twice before dwelling into misinformation even during such uncertain times. Misinformation and false information are a big concern and even termed as “infodemic”[1] by the WHO.
There is an abundance of information and it is difficult to choose which information to believe. This justifies the fact-checking programmes launched by mainstream media.
He highlighted the lack of ‘battle of perspectives’ even on primetime debates today.
He highlighted that we have entered a post-truth world where misinformation is projected as information and fear-mongering is considered as news.
He noted that the Code of Conduct under the Press Council Act, 1978 prescribes self-regulation.
He stated that the right to freedom of speech and expression under Article 19 also casts a duty on the media because the same freedom is interpreted by the media to prove that the people’s right to know is the foundation of media freedom.
He stated that self-regulation by the media can prevent overreach of its freedom by the State. And only then media as a fourth limb of the State can prevent the perpetual continuance of State of Exception in future. Giorgio Agamben in his State of Exception talks about the bio-political state of affairs.
Bio-polity is coined by Michel Foucault, a French philosopher and means that the idea of sovereignty conceives of the thought that the sovereign has control over an individual’s life. The emergency powers assumed by the States today have a potential of becoming permanent and with Agamben’s State of Exception based on Foucault’s Bio-polity, it is possible that the States can even curtail the individual rights even further. He highlighted that the Indian government being a democracy does not impose paternal laws in a totalitarian way or like a despot.
Democratic governments only respond to the demand of people to be safe. He suggested that Giorgio Agamben’s State of Exception and Foucault’s Bio-polity should not be blown out of proportion to create fear of totalitarianism, as done by neo-liberals.
He believes in Immanuel Kant’s philosophy that ‘state is not an impediment to freedom but a means to realise freedom’.
Kant believed that freedom is not a hollow idea and it is closely connected with the autonomy of the individual. And that individual freedom is ensured by giving objective information and not the misinformation. And when media presents any news as gospel or a decisive headline the information commits a kind of epistemic injustice on the listener by not letting him or her think and simply believe what is told.
FREEDOM OF PRESS AND MEDIA
Then the second distinguished speaker Sudhnasu Ranjan was invited to discuss the issue at hand.
He highlighted that actually the world is never ruled by truth and since the inception world is only told the Untruth.
He believes that no law can regulate the media per see.
There is no explicit right of the press in fundamental rights because the constitution-makers must have thought that journalists like any other citizen will have the fundamental right of freedom of speech and expression.
He quoted our first Prime Minister, Pandit Jawaharlal Nehru and said that gagging the press is worse than what a free press with all its sensationalism can do. He observed that curbing liberty is worse than misusing liberty.
He gave examples from Indian mythology and quoted the Mahabharat. He said that we can find Fake News even in Mahabharata. He quoted an incident from Mahabharata where Lord Krishna and the Pandavas realised that till the time Dronacharya is fighting from the side of the Kauravas, they can not be defeated. They created a chain of fake news and killed an elephant named ashwathama, which was also the name of Dronacharya’s son. Then they went in front of Dronacharya and shouted “I killed Ashwathama” and when Dronacharya asked Yudhishtra, known for never have lied in his lifetime he nodded in affirmative. This broke Dronacharya’s morale and he left the battle.
Right from the beginning of civilisation, we have found that it is the untruth which has been disseminated so it is not true that misinformation or fake news has entered into the society now.
He criticised Immanuel Kant for being racist and for promoting the principle of white man’s burden. He highlighted that we have an unjust society where people like Theodor Roosevelt, 26th US president, David Hume and Immanuel Kant also believes in the concept of ‘Eugenics’ and how the genes of white race are better than all other genes. He quoted the 1823 judgment of Johnson v. M’Intosh [21 U.S. (8 Wheat.) 543 (1823)] where Chief Justice John Marshall applied the doctrine of discovery and invalidated all rights, titles and interests of native people. He observed that under the doctrine of discovery title to lands law with the government whose subjects travelled to and occupied a territory whose inhabitants were not subjects of a European Christian Church. However, due to criticism, CJ Marshall considered some rights of native Americans in Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832) and in Cherokee Nation v. Georgia [1] 30 U.S. (5 Pet.) 1 (1831). So he said that Truth/Justice has been causality since the inception of society and it is not a new phenomenon that Truth is being denied to the people. He quoted Nietzsche’s doctrine of Perspectivism which suggests that Truth is separated from any particular vantage point, and so there are no ethical or epistemological absolutes.
Everyone sees Truth differently from their own perspective. He discussed an article “why did John break his leg?” written by Otto Frisch from a must-read book titled ‘Encyclopaedia of Ignorance’ and highlighted again that there can be different answers to one question which are all true from the speaker’s vantage point.
Truth is multifaceted and believing that truth is only one and absolute then it will result in fascism.
VIEWS OF THE CHIEF GUEST
Then the convenors invited Dr.Manoj Kumar Sinha, Director ILI to address the participants.
Any curtailment of the rights of the media will result in denying individual human rights of people.
He agreed with Mr Sudhanshu Ranjan that any regulation on the rights of the media will be wrong. He compared the Constitution of India with Constitution of the United States of America and said that in the latter the nature of rights is more absolute and the court interprets and defines the contours while in Constitution of India the limitations are ingrained.
He observed that the first amendment introduced reasonable restriction in Article 19 (2) and both Pandit Jawaharlal Nehru and Bhim Rao Ambedkar were in favour of the amendment. They proposed three restrictions; Relations with foreign states, Public order and Incitement to the offence. It is interesting to know that there was huge opposition to this amendment in the provisional parliament, particularly by Shyama Prasad Mukharjee. He quoted Nehru
It has become a matter of the deepest distress to me to see the way in which the less responsible news sheets are being conducted and it has become a matter of the deepest distress to me to see from day to day some these new sheets which are full of vulgarity and indecency and also day after day not injuring me or this House much, but poisoning the minds of the younger generation degrading their mental integrity and moral standard. It is not for me a political problem but a moral problem.”
Media houses are no doubt working like business houses yet any attempt to regulate media will jeopardize the people’s right to know.
He observed that the rights mentioned under Article 19 are like all the human rights mentioned under all instruments of international human rights law. The interesting part is Article 19 under the Constitution of India, Article 19 under the UDHR, Article 19 of the International Covenant of the Civil and Political Rights all talk about human and fundamental right freedom of speech and expression. Also under of them right to know is an implied fundamental right and under a time of emergency, states are permitted to limit them. Even after the 44th Constitutional amendment enforcement of Article 19 rights can be suspended in emergency situations. But during COVID -19 situation this right should not be restricted. We are currently facing a public health emergency of international nature and COVID-19 is not the concern on one State and that is why international cooperation is fundamental.
The world is suffering because China suppressed information when it should have shared the true nature of the danger. The state which controls the freedom of speech and expression can cause harm which can affect the whole world community. WHO could have alerted the world if China would have shared the information. China had an obligation under Article 6 of the International Health Regulation 2005 to inform WHO that it is facing a health epidemic. He urged that people who are advocating for regulation of information and media must rethink. We have clearly understood that freedom speech and expression and freedom press is fundamental for the survival of human rights and democracy.
He ended with what Immanuel Kant said in his book “Towards Perpetual Peace” that there is a possibility of achieving world peace. But he said world peace can only be achieved if the nations are governed internally by the republican principles and believe in the idea of cooperation externally. Kant was a great believer in the Cosmopolitan world and he believed that a citizen of a nation should have a right as a global citizen. Sir ended with the argument that FR to freedom of speech and expression should not be restricted even in times of emergency.
- Due to COVID-19, a few media houses have gone into job cutting and journalists are laid off and retrenchment is taking place. What is the way out?
Mr. Sudhanshu Ranjan answered the question and said that this is dishonesty and it is being used in our country to perpetuate injustice and monstrosity. Retrenchment started immediately after the lockdown was imposed. So, it is not as if the layoffs were down because the media houses experienced losses. This is dishonesty on the part of media houses. There has to have some law which will prohibit the employer from firing the employee from the job without notice even of the employee is contractual. There is a need to create a better work culture. The employers are not doing charity by paying the employees rather every employee is contributing in the development of the organisation.
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What are the various mechanisms to control the menace of Fake news? Especially in the era of COVID-19.
Mr. Sudhanshu Ranjan answered the question and said that Fake news is not a new phenomenon and has been there since the beginning. The PIB Fact Check where they are filtering fake news and true news. This is being done on Doordarshan. And if it is found that the fake news was circulated under some malicious intent then that comes under the purview of Indian Penal Code. The people should who are offended by the fake news they can approach the court.
3. While mainstream media and news channel come under the purview of freedom of press what is the way in which fake news on social media can be controlled?
When the licensing act was enacted by the British government the object was to prevent fake news being spread by the press. With the advancement of technology the fear of misuse in the society also grows. But he believes that at least the people who earlier did not have any voice now have a platform to tell the world what it means. Even without a gatekeeper the reality is that because of social media everybody has freedom of speech and expression. He is of the view that the current social media might overtake the news media one day. Prof Dr. Manoj Kumar Sinha also observed that we have a concept of intermediary liability which is manifested under section 79 of the Information Technology Act which is relevant here. Till the time fake news in not undermining any woman, minority community, individual, it should be left upon the people to decide its truth.
REFERENCES
[1] United Nations. (2020). UN tackles ‘infodemic’ of misinformation and cybercrime in COVID-19 crisis | United Nations. United Nations; United Nations. https://www.un.org/en/un-coronavirus-communications-team/un-tackling-%E2%80%98infodemic%E2%80%99-misinformation-and-cybercrime-covid-19
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