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In 1824, Raja Rammohan Roy wrote to the Supreme Court of Judicature at Fort William protesting colonial era regulations which restricted the freedom of the press by introducing a licensing regime for newspapers. He wrote, Every good ruler will be anxious to afford every individual the readiest means of bringing to his notice whatever may require his interference. To secure this important object, the liberty of publication is the only effectual means that can be employed.

After the revolt of 1857, the British government, intent on curbing the role of the press as the institutional opposition to its rule, enacted the Press and Registration of Books Act, 1867 (PRB 1867). This Act was aimed solely at English newspapers and was a relatively uncontroversial legislation at the time, while the Vernacular Press Act of 1878, which was a much more draconian legislation targeted at revolutionary nationalist newspapers of the era, was waiting in the wings to curb vernacular newspapers.

Nearly 150 years later, it appears that the Indian government is following the colonial British governments playbook. The Ministry of Information and Broadcasting released a draft Registration of Press and Periodicals Bill, 2019 (RPP 2019) for stakeholder consultation. The Bill seeks to replace the PRB 1867, though on a close examination, it is not significantly different from the colonial era legislation developed by the British to strangle the freedom of the press, though some of the more egregious rules have been omitted.

What is perhaps most interesting in this Bill is a provision which declares that rules for the registration of news on digital media may be prescribed. If imitation is indeed the greatest form of flattery, then re-enacting an ostensibly lenient framework for newspaper regulation while keeping a more draconian, targeted legislation waiting in the wings is perhaps the greatest homage that the government could pay to its British predecessors.

Whether this historical analogy is apt or not would depend on the content of the rules made for the registration of news on digital media. However, there are serious reservations with the RPP 2019 that deserve critical public scrutiny.

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The draft Bill was released in November 2019, and it has now been a few months since the period for public comments has expired. However, there has been a lack of communication on the outcome of public consultations. It remains unclear whether a new draft will be circulated based on the feedback received during this period, or whether the government will stick to the Bill in its current form.

A lot has also happened since November 2019 the COVID-19 crisis has brought the print news industry to a grinding halt, and its already fragile business models appear to be crumbling. There have been several reports over the past few months of newspapers laying off journalists, cutting their benefits and even shutting down editions of their newspapers. In this context, the need of the hour is a reform of press laws which can ensure the sustainability of credible journalism. The colonial character of the proposed Bill does not appear mindful of the present moment and the contemporary issues faced by the press.

While the topic of media regulation is a subject of incredible depth, it might be prudent to focus on three preliminary reservations to the Bill. First, the government should not be re-enacting a colonial era legislation designed to curb the freedom of the press. Second, the substance of the RPP 2019 is seriously inadequate and represents a flawed approach to regulating the news ecosystem. Third, the opportunity cost of this Bill is to forego constructive solutions to the problems faced by newspapers today.

Lessons from history

The regulation of newspapers was a site of great contestation between the colonial British state and the rising nationalist movement in the country. While initially aligned with colonial sensibilities, the press in India very quickly adopted the mantle of serving as the institutional opposition to colonial policy. In perfect alignment with the colonial model of social control, the governments response was to introduce the requirement of registration for every prospective newspaper. This requirement, first introduced in 1823, was directly responsible for Raja Rammohan Roys Mirat-ul-Akbar shutting down its operations.

Raja Rammohan Roy. Illustration: Pariplab Chakraborty

In the period from 1870 to 1918, when the national movement had not yet resorted to mass agitation, the press was the chief instrument for arousing and consolidating nationalist public opinion. Several powerful newspapers under fearless journalists emerged in this time period, such as The Hindu and Swadesamitram under G. Subramaniya Iyer, Kesari and Mahratta under B.G. Tilak and Amrita Bazar Patrika under Motilal Ghosh. As a response, powers to revoke registrations, to confiscate printing presses and to impose criminal liability on editors were integrated within the regulatory framework of the press. What followed was the creation of a regime intended to keep the press at a short leash, forcing editors and journalists to moderate the tenor of their criticism.

Given the role of the press in securing independence for the country, it is an issue of some surprise that the governments of early India opted to retain the apparatus of press regulation bestowed upon them by the British. The transformative moment of the constitution did not yield a similar transformation for the press of this country, who continued being regulated by a colonial model of social control and subject to the administrative vagaries of a licensing regime. In 2020, however, it might finally be time to reimagine the relationship between the State and the press, particularly in a time where the independence of the press is increasingly critical to ensuring accountable governance.

The flawed substance of the RPP 2019

The historical context of the PRB 1867 clearly outlines the draconian intent behind the law. Worryingly, the RPP 2019 retains the substance and spirit of colonial-era press legislation.

Significantly, the RPP 2019 retains the requirement of registration for every periodical (a broader category than just newspapers, including magazines and journals), as well as the power to revoke registrations. The colonial model of proprietor control the use of licensing and registration requirements to enable the exertion of pressure on the proprietors of a newspaper is retained by the draft Bill.

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It goes on to disqualify any person convicted of an offence for having done anything against the security of the State or convicted under the Unlawful Activities (Prevention) Act, 1967, from bringing out a publication. While conviction under the UAPA might be a justifiably narrow disqualification, phrases such as security of the State are vague and have historically been prone to capture by ruling dispensations to meet their ends of political self-preservation. Further, recent instances of the use of the UAPA to clamp down on journalists and civil society activists makes this disqualification all the more troubling.

The RPP 2019 establishes the office of the Press Registrar General, which on the face of it, is no different than the colonial post of the Press Registrar. The Bill forces the Press Registrar General to be bound by the Central government on questions of policy and leaves the determination of what amounts to a question of policy to the Central government itself.

The press is often hailed as the fourth estate, an institution whose independence is coveted in most liberal democracies. In this light, it is worrisome that there is no attempt made in the RPP 2019 to establish any degree of institutional autonomy for the Press Registrar General. Consequently, it is prudent to fear that this institution, vested with crucial regulatory powers, may become another bureaucratic arm through which the Government imposes various pressures on the news ecosystem. A sophisticated mechanism for the constitution and operation of this institution is essential to enacting benign press regulation, however the RPP 2019 does not appear to make this effort.

Additionally, the Bill introduces the requirement for the registration of news on digital media, though this requirement will not be operational until rules for the same are prescribed by the Central government. The definition of news on digital media in the Bill appears to be incredibly expansive, and unless it is significantly revised, may prove to be an unworkable definition for the bill. More importantly, requiring the mandatory registration of all news on digital mediums undermines the ability of the internet to democratise information by erecting barriers to the freedom of publication, especially given that the terms associated with this registration are not laid out in the Bill.

The lack of any geographical limitation in the rule serves to exaggerate its absurdity. This kind of an over-broad rule demonstrates, at best, a lack of understanding of the internet, and at worst, a portent mistrust of the freedom of publication.

The opportunity cost

The government may not have moved beyond the colonial models of governance employed in 1867, but the news ecosystem has not stood still. A comprehensive range of problems are faced by todays newspapers, which require nuanced, evidence-backed regulatory intervention. A stagnation of circulation rates for print media appears inevitable given the rise of digital mediums for news consumption. When combined with shrinking advertising revenues in print because of the emergence of digital advertising, this threatens the sustainability of many newspapers, who find themselves isolated in commercial negotiations with advertisers.

Many small newspapers rely on government advertising through the Department of Audio-Visual Promotion (DAVP) as a lifeline for their revenue, thereby providing the government with leverage to impose editorial pressures on such newspapers. The DAVP has been alleged to suffer from various operational inefficiencies and functions under strict bureaucratic control. There is an immediate need to ensure transparency and accountability in the operation of the DAVP to ensure that state support is channelled equitably to struggling newspapers.

Also read: Indias Free Press Is Still Tormented by the Laws Brought by the Emergency

The opportunity cost of a poorly drafted Bill, in this context, is to let the fourth estate of democracy die a slow death by a thousand cuts. Indian press regulation needs to abandon its colonial character in order to truly address the problems of the 21st century. A recent report by the Vidhi Centre for Legal Policy outlines a roadmap of legal reforms for the press based on an analysis of the constitutional values that must be advanced by any such reform, and explores some of these issues in further detail.

However, the only substantive reform forwarded by way of the RPP 2019 is to require the mandatory registration of all publications, even on the internet. Perhaps it is true that if the only tool you have is a hammer, everything looks like a nail. In this context, it is imperative that the government reconsiders the substance of the RPP 2019, and develops legislative measures backed by evidence-based research and industry consultation.

While it may be asking too much to ask the government to stop perceiving the press as an unruly beast, the least it can do is build a healthy, progressive ecosystem, and not restrain it with the same colonial leash.

Aniruddh Nigam is Research Fellow (Public Law) at the Vidhi Centre for Legal Policy.

Read more:
Draft Press Registration Bill Is Nothing But a New Collar on an Old Leash - The Wire