CHANAKYA NATIONAL LAW

UNIVERSITY

Freedom of the Press is Not Absolute- A

Critical Analysis
Press Media and Telecommunication Law

Submitted to:
Mr. G.P. Pandey

Submitted by:
Anubhuti Varma
Roll No- 721
5th Year, 9th Semester

Research Methodology
Aims and Objectives:
The aim of the project is to present a detailed study of Freedom of the Press is not absolute- a
critical analysis
Scope and Limitations:
The project is basically based on the doctrinal method of research as no field work is done on
this particular topic. The whole project is made with the use of the secondary sources.
Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical and
descriptive.
Mode of Citation:
The researcher has followed Bluebook throughout the course of this research paper.
Sources of Data:
The following secondary sources of data have been used in the project1. Books
2. Websites
3. Statute

2 | Page

Acknowledgement
It gives me incredible pleasure to present a research work on Press freedom are not absolute- a
critical analysis. I would like to enlighten my readers regarding this topic and I have tried my
best to pave the way for bringing more luminosity to this topic.
I am grateful to my faculty in charge Mr. G.P.Pandey who has encouraged me to complete this
project. I would like to thank the librarian of CNLU for their interest in providing me ample
research material.
- Anubhuti Varma

3 | Page

LIST OF CASES

A.K Gopalan's case, AIR 1951 SC 21.

Bennett Coleman and Co. v. Union of India, AIR 1950 SC 124.
Bijoyananda v Bala Krishna AIR 1953 Ori 249.
Bobby Art International v Om Pal Singh Hoon , (1996 ) 4 SCC 1.
C.K. Daphtary v O.P Gupta, AIR 1971 SC 1132.
Devi Saran v. State, AIR 1954 Pat 254.
Gobind v. State of Madhya Pradesh and Another, AIR 1975 SC 1379.
Hamdard dawakhana v. Union of India, AIR 1960 SC 556.
Harijai Singh, AIR 1997 SC 73.
Indian Express Newspapers v. Union of India, AIR 1986 SC 515.
K .A. Abbas v. Union of India, AIR 1971 SC 117.
Kharak Singh v. State of Uttar Pradesh and Others, AIR 1963 SC 1295.
Lowell v. Griffin, (1939) 303 US 444.
Meneka Gandhi v. Union of India, 1978 (1) SCC 248.
M.S.M. Sharma v/s Sri Krishna Sinha, AIR 1959 SC 395.
New York Times v Suvillian, 376 US 254.
Prabhu Dutt v Union of India, AIR 1982 SC 6.
TATA Press Ltd. v. MTNL, AIR 1995 SC 2485.
Rao Harnarain v Gumori Ram, AIR 1958 Punj. 273.
Romesh Thapar v/s Union of India AIR 1950 SC 124.
R. Rajagopal and Another v. State of Tamil Nadu and Others, (1994) 6 SCC 632.
Sakal Papers Ltd. v/s Union of India, AIR 1962 SC 305.
Superintendent, Central Prison v. Ram Manohar Lohiya, AIR 1960 SC 633.
Union of India v/s Association for Democratic Reforms, (2002) 5 SCC 294.

4 | Page

Contents
INTRODUCTION........................................................................................................... 6
THE HISTORICAL PERSPECTIVE.................................................................................... 8
POSITION IN US, UK and INDIA.................................................................................10
MEANING AND SCOPE OF ARTICLE 19(2)..................................................................14
CENSORSHIP............................................................................................................. 17
MEDIA TRIALS........................................................................................................... 19
STING OPERATIONS.................................................................................................. 20
PRESS NEEDS TO BE RESPONSIBLE..........................................................................21
RESTRICTIONS ON FREEDOM OF PRESS IN INDIA.....................................................22
CONCLUSION............................................................................................................ 26

5 | Page

INTRODUCTION
Freedom of the press is the freedom of communication & expression through vehicles including
various electronic media & published materials. While such freedom mostly implies the absence
of interference from an overreaching state, its preservation may be sought through constitutional
or other protection.
The strength and importance of media in a democracy is well recognized. Article 19(1)(a) of the
Indian Constitution, which gives freedom of speech and expression includes within its ambit,
freedom of press. The existence of a free, independent and powerful media is the cornerstone of
a democracy, especially of a highly mixed society like India. Media is not only a medium to
express ones feelings, opinions and views, but it is also responsible and instrumental for building
opinions and views on various topics of regional, national and international agenda. The pivotal
role of the media is its ability to mobilize the thinking process of millions. The criminal justice
system in this country has many lacunae which are used by the rich and powerful to go scot-free.
Figures speak for themselves in this case as does the conviction rate in our country which is
abysmally low at 4 percent. In such circumstances the media plays a crucial role in not only
mobilizing public opinion but bringing to light injustices which most likely would have gone
unnoticed otherwise.
It cannot be denied that it is of practical importance that a precarious balance between the
fundamental right to expression and the right to ones privacy be maintained. The second practice
which has become more of a daily occurrence now is that of Media trials. Something which was
started to show to the public at large the truth about cases has now become a practice interfering
dangerously with the justice delivery system. The following observations of the Supreme Court
in R. Rajagopal and Another v. State of Tamil Nadu and Others1 are true reminiscence of the
limits of freedom of press with respect to the right to privacy. But the legal implications arising
out of the concept of 'press freedom' are many and hence they are not confined to the
1 (1994) 6 SCC 632.

6 | Page

constitutional provisions alone. The different aspects of it infringe inter alia on criminal law ,
law of contempt, Copyright Act , Official Secrets Act, Freedom of Information Act, Law of torts,
Prevention of Insults to National Honour Act etc to name a few .
There are also exclusive press laws like Working Journalists Act, Press Councils Acts,
Newspapers Act, Press and Registration of Books Act etc. The Press Councils Act created the
quasi judicial body- Press Council of India. Basic issues relating to Article 19 (1)(a) personal
liberties and the principles of natural justice need to be settled. Existing privilege laws are a bit
too ambiguous and expansive in nature as it doesn't define what exactly constitutes a breach of
privilege or Contempt of House. Hence the need to codify privileges.
Recommendations have also been made with the intentions to protect journalists and
professionals, from being compelled to disclose information received in confidence except when
required in public interest and also against a charge of contempt of Court by permitting truth as a
defense.
At this juncture , as we are approaching the sixth decade of our freedom , lets keep in mind the
pertinence of freedom of press and what our former Prime Minister Rajiv Gandhi had said about
press freedom:
"Freedom of Press is an Article of Faith with us , sanctified by our Constitution, validated by
four decades of freedom and indispensable to our future as a Nation."

7 | Page

THE HISTORICAL PERSPECTIVE

The chapter on Fundamental rights, Part III in the Indian Constitution, was not incorporated as a
popular concession to international sentiment and thinking on human rights in vogue after the
conclusion of the Second World War. The demand for constitutional guarantees of human rights
for Indians was made as far as way back as in 1895 in the Constitution of India Bill, popularly
called the Swaraj Bill, which was inspired by Lokmanya Tilak, a lawyer and a great freedom
fighter. This bill envisaged for India a Constitution guaranteeing to every citizen, among other
freedoms, the freedom of press. To a certain extent one can say that the debut of press in India
was made with commercial interests in mind. It was the contribution of the first British MNC
-The East India Company.
It was one of those instruments of the British, which was later manipulated by the Indians to
serve their interests; as the role of the press underwent a major change and it soon turned out to
be one of the most effective weapons Indians had at their disposal during their struggle for
freedom from the British. The press was always under the control of the company, but after its
press role reversal the necessity to clamp harsh curbs became imminent. Repressive laws were
passed and judgments were given curbing press freedom.2
The Founding Fathers and Mothers of the Indian Constitution attached great importance to
freedom of speech and expression and freedom of the press. Their experience of waves of
repressive measures during British rule, when the nationalist press was bludgeoned by sedition
trials and forfeiture of security deposits, convinced them of the immense value of this right in the
sovereign democratic republic which India was to be under its Constitution. They believed that
freedom of expression and the freedom of press are indispensable to the operation of a
democratic system. They believed that central to the concept of free press is freedom of political
opinion and at the core of that freedom lies the right to criticize the Government. They endorsed
the thinking of Jawahar Lal Nehru who said, I would rather have a completely free press with
all the dangers involved in the wrong use of that freedom than a suppressed and regulated
press.
2 AIR 1954 Pat 254.
8 | Page

The Indian Constitution provides for this freedom in Article 19(1)(a) which guarantees right to
freedom of speech and expression. It has been held that this right to freedom also includes press
freedom. It is an implied or deduced right. The economic and business aspects of the press are
regulated under Article 19(1)(g) which provides for freedom of profession , occupation, trade or
business which is restricted by Article 19(6) which includes provisions for public interest,
professional and technical qualifications and state nationalization- total or partial.
One of the heads of restrictions on the freedom of speech and expression in the draft Constitution
was sedition, aptly described by Gandhiji as the Prince of the Indian Penal Code. It was
frequently invoked to crush the freedom movement and incarnate freedom fighters, including
prominent leaders like Tilak etc. in the heyday of British colonism sedition was construed by the
privy Council in the cases of Tilak,3 Wallace-Johnson4 and Sadashiv Bhalerao5 to include any
statement that was liable to cause disaffection , namely, exciting in others certain inimical
feelings towards the government, although there was no element of incitement to violence or
rebellion. To restrict speech under the head of sedition was galling to the framers of the
Constitution. K.M Munshi assilated the inclusion of sedition as a head of restriction on freedom
of expression and moved an amendment for its deletion. Almost all the members supported K.M.
Munshis amendment and sedition did not disfigure the Indian Constitution.

3 25 IA 1.
4 1940 AC 231.
5 AIR 1947 PC 82.
9 | Page

POSITION IN US, UK and INDIA

Position in U.S.A
Freedom of Press is also recognized by the American Constitution. Initially, the freedom of press
was not expressly provided in the American Constitution. The freedom of press was inserted only
after the First Amendment of the American Constitution. The Amendment prohibited the U.S.
Congress from making laws which infringes the freedom of press. The First Amendment of the
U.S. Constitution was influenced by the Virginian Declaration of Rights.
Position in U.K.
The Parliament is sovereign in the United Kingdom. Unlike, the U.S., India & other states the
subjects of U.K. does not possess any guaranteed rights. The freedom of press is also well
recognized in the U.K. The citizens have full liberty to do anything up to the extent that it does
not violate the rule of common law or statute law.
INDIA
In Romesh Thapar v. State of Madras,6 Patanjali Shastri,CJ, observed that Freedom of speech &
of the press lay at the foundation of all democratic organization, for without free political
discussion no public education, so essential for the proper functioning of the process of popular
government, is possible. In this case, entry and circulation of the English journal Cross Road,
printed and published in Bombay, was banned by the Government of Madras. The same was held
to be violative of the freedom of speech and expression, as without liberty of circulation,
publication would be of little value.

6 1950 SC 124.
10 | P a g e

The Honble Supreme Court observed in Union of India v. Association for Democratic Reforms,7
One-sided information, disinformation, misinformation and non information, all equally create
an uninformed citizenry which makes democracy a farce. Freedom of speech and expression
includes right to impart and receive information which includes freedom to hold opinions. In
Indian Express Newspapers v. Union of India,8 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. Freedom of
press has three essential elements. They are:
1. Freedom of access to all sources of information,
2. Freedom of publication, and
3. Freedom of circulation.
There are many instances when the freedom of press has been suppressed by the legislature. In
Sakal Papers v. Union of India,9 the Daily Newspapers (Price and Page) Order, 1960, which
fixed the number of pages and size which a newspaper could publish at a price was held to be
violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly,
in Bennett Coleman and Co. v. Union of India,10 the validity of the Newsprint Control Order,
which fixed the maximum number of pages, was struck down by the Court holding it to be
violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2).
The Court also rejected the plea of the Government that it would help small newspapers to grow.
In Hamdard Dawakhana v. Union of India,11 it was held that commercial advertisements were not
included within the concept of freedom of speech and expression. In Indian Express Newspaper v. Union
7 (2002) 5 SCC 294.
8 (1985) 1 SCC 641.
9 AIR 1962 SC 305.
10 (1972) 2 SCC 788.
11 AIR 1960 SC 556.
11 | P a g e

of India, 12 the court held that all commercial advertisements could not denied the protection of art
19(1)(a), merely because they were issued by a businessmen. Thus explaining the effect of the
combined reading of both the above cases the Supreme Court in TATA Press Ltd. v. MTNL13 held
that commercial speech could not be denied the protection of art 19(1)(a), merely because they
were issued by businessmen. In a democratic society it was observed that free flow of
commercial information was indispensible.
In Maneka Gandhi v. Union of India14 it was contended on behalf of the Government that the
fundamental rights guaranteed by the Constitution were available only within the territory of
India, but the Supreme Court held that the right to freedom of speech and expression has no
geographical limitation. The right carries with it the right to gather information as also to speak
and express oneself at home and abroad and to exchange those ideas with others not only in India
but also outside India. If the direct and indirect consequence of the order canceling the passport
of the petitioner is to abridge or take away freedom of speech and expression, it would be
violative of Article 19 (1) (a) and would not be protected by Article 19(2) of the Constitution.
The Freedom under Article 19 and Religious Faith: Bejoe Emmanuel V. State of Kerala (National
Anthem Case)15 the freedom of expression has been extended by Supreme Court even to include
the faith of a religious group, under which they refrained from joining their voices when National
Anthem was sung. In this case the three school children were faithful of Jehovas witnesses, a
world wide sect of Christians. During the morning assembly at school these children while
respectfully standing during the recitation of the National Anthem, Jana Gana Mana, refused to
sing it on the ground that it was against the tenets of their religious faith. That Jehovas witnesses
do have several tenets among them refusal to sing any National Anthem or salute Flag, has been
well established and recognised by world over and upheld by the highest courts in the United
12 AIR 1986 SC 551.
13 AIR 1995 SC 2485.
14 1978 (1) SCC 248.
15 (1986) 3 SCC 615.
12 | P a g e

States, Australia and Canada and found recognition in authoritative texts like Encyclopaedia
Britannica. Circulars issued by the director of public instruction, Kerala obliged school children
to sing National Anthem. Consequently, the three children on the instruction of the Deputy
Inspector of Schools were expelled from the school.
Having failed to secure relief through representations, they filed writ petition which was rejected
first by Single Judge and then by a Division bench of the High Court of Kerala. The Supreme
Court accepted their appeal. It was held that the appellants truly and conscientiously believed
that their religion does not permit them to join any rituals except it be in their prayers to Jehovah,
their God. Though their religious belief may appear strange, the sincerity of their belief is beyond
question. They do not hold their beliefs idly and their conduct is not the outcome or out of any
unpatriotic sentiments. Their objection to sing is not just against the National Anthem of India.
They have refused to sing other National Anthem elsewhere. They are law abiding and wellbehaved children who do stand respectfully and would continue to do so when National Anthem
is sung. Their refusal, while so standing to join in the singing of the National Anthem is neither
disrespectful of it nor inconsistent with the Fundamental Duty under Article 51 A(a). Hence nonaction should have been taken against them. It was held to be their fundamental right of freedom
of speech and expression not to sing the National Anthem during the morning assembly of the
School. This decision upholds the liberty of thought and belief apart from freedom of
expression. As long as it did not mean deliberate disrespect, their right to be silent at the time of
singing of National Anthem was held to be a recognized right under Article 19(1)(a). Being silent
is also one kind of exercise of right of expression.

13 | P a g e

MEANING AND SCOPE OF ARTICLE 19(2)

Freedom of speech and expression means the right to express ones own convictions and
opinions freely by means of mouth, writing, printing pictures or any other mode. It thus includes
the expression of ones ideas through any communicable medium or visible representation, such
as gesture, signs and the like.16 The expression connotes also publications and thus the freedom
of press is included in this category. Free propagation of ideas is the necessary objective and this
may be done on the platform or through the press. The freedom of propagation of ideas is
secured by freedom of circulation. Liberty of circulation is essential to the freedom as the liberty
of publication. Indeed without circulation the publication would be of little value.

16 Lowell v. Griffin, (1939) 303 US 444.

14 | P a g e

Freedom of expression has four broad purposes to serve:1. It helps an individual to attain self-fulfillment
2. It assists in the discovery of truth
3. It strengthens the capacity of an individual in participating in decision making
4. It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change
In the Romesh Thappar case17 the court laid down an important principle. So long as the
possibility of the law being applied for purposes not sanctioned by the Constitution cannot be
ruled out, it must be held to be wholly unconstitutional and void. In other words, Clause 2 of Art
19 having allowed the imposition of restrictions on the freedom of speech and expression only in
cases where danger to public security is involved, an enactment which is capable of being
applied to cases where no such danger could arise, cannot be held to be unconstitutional and
valid to any extent.
Art 19(2) was subsequently amended by the Constitution (First Amendment) Act,1951, which
was enacted with retrospective effect on 18 June,1951.13 Art 19(2) was subsequently amended
by the Constitution (Sixteenth Amendment) Act, which was enacted with prospective.
Thus by way of judicial pronouncements over the years there had been a paradigm shift in the
application of this article and it became somewhat press friendly although imposing restrictions
by way of amendments.
The current scenario is that freedom of press is not absolute. It can be restricted provided three
distinct and independent prerequisites are satisfied.
1) The restriction imposed must have the authority of law to support it. Freedom of the press
cannot be curtailed by executive orders or administrative instructions which lack the sanction of
law.
2) The law must fall squarely within one or more heads of restrictions specified in Art 19(2).
Restrictions on freedom of speech and expression cannot be imposed on such omnibus grounds
as in the interest of the general public
17 Supra note 6.
15 | P a g e

3) The restrictions must be reasonable and must not be excessive. The validity of restrictions
imposed is justifiable and open for judicial review by the Indian courts. Liberty has got to be
limited in order to be affectively possessed. For liberty of one must not offend the liberty of
others.
Patanjali Shastri,J. in A.K. Gopalans case18, observed, man as a rational being desires to do
many things, but in a civil society his desires will have to be controlled with the exercise of
similar desires by other individuals. The guarantee of each of the above right is therefore
restricted by the Constitution itself by conferring upon the State a power to impose by reasonable
restrictions as may be necessary in the larger interest of community. The restrictions on these
freedoms are provided in clauses 2 to 6 of Art 19 of the Constitution.
The Liberty of the press as defined by Lord Mansfield, consists in printing without any license
subject to the consequences of law. Thus the liberty of the press means liberty to print and
publish what one pleases, without previous permission. It includes newspapers, periodicals and
even pamphlets.
Freedom of press does not occupy a preferred position in the Indian Constitution which does not
recognize a hierarchy of rights. There are however dicta of the Supreme Court describing this
freedom as the Ark of the Covenant of Democracy. 19It is the most precious of all freedoms
guaranteed by our Constitution.
In Prabhu Dutt v Union of India 20 the Supreme Court has held that the right to know news and
information regarding administration of the Government is included in the freedom of press. But
this right is not absolute and restrictions can be imposed on it in the interest of the society and

18 AIR 1951 SC 21.

19 Supra note 10.
20 AIR 1982 SC 6.
16 | P a g e

the individual from which the press obtains information. They can obtain information from an
individual when he voluntarily agrees to give such information.
In its landmark judgment in the case of Sakal Papers21 the Supreme Court ruled that Art 19(2) of
our Constitution permits imposition of reasonable restrictions under the heads specified in Art
19(2) and on no other grounds. Freedom of the press cannot be curtailed, like the freedom to
carry on business, in the interest of the general public.
In another celebrated decision, Bennett Coleman & Co. v Union of India,22 the Supreme Court
again came to the rescue of the press. It held that freedom of press entitles newspapers to achieve
any volume of circulation and freedom lies both in its circulation and content. Freedom of press
is the heart of social and political intercourse. It is the primary duty of the courts to uphold the
freedom of the press and invalidate all laws or administrative actions which interfere with it
contrary to the constitutional mandate.23 In the case of Tata Press Ltd v Mahanagar Telephone
Nigam Ltd,24 the issue was that whether a commercial speech is protected under Art 19(1)(a). the
court after an extensive review of the judgments of the US Supreme Court and previous Supreme
Court held that Commercial advertisements are entitled to the protection of Article 19(1)(a).

CENSORSHIP
There is no provision in the Indian Constitution permitting or proscribing censorship. The sting
of censorship lies in prior restraint which affects the heart and soul of the freedom of press.
21 Supra note 19.
22 Supra note 10.
23 Re Harijai Singh, AIR 1997 SC 73.
24 (1995) 5 SCC 139 at 154.
17 | P a g e

Expression is snuffed out before its birth. Suppression by a stroke of the pen is more likely to be
applied by the censoring authorities than by suppression through a criminal process, and thus
there is far less scope for public appraisal and discussion of the matter. This is the real vice of the
prior censor.
In Express Newspapers v Union of India, 25 the Supreme Court held that a law which imposes
pre-censorship or curtails the circulation or prevents newspapers from being started or require
the Government to seek Government aid in order to survive was violative of Art 19(1)(a).
The Bombay High Court in its landmark judgment in Binod Rao v Masani declared that Merely
because dissent, disapproval or criticism is expressed in strong language is no
ground for banning its publication
The Guwahati High court in a path breaking judgment laid down that the representation to any
Government was not adequate because censorship was often invoked against its own policies and
in such a situation an appeal to the government would be nothing short of anappeal from Caesar
to Caesar.26
Pre- censorship of films:
K .A. Abbas v. Union of India27, the petitioner made a documentary film called "A Tale of Four
Cities" which attempted to portray the contrast between the life of the rich and the poor in the
four principal cities of the country. The film included certain shots of the red light district in
Bombay. A lthough the petitioner applied to the Board of Film Censors for a `U' Certificate
for unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted
to adults. On an appeal made to it by the petitioner, the Central Government issued a direction on
July 3, 1969 that a U Certificate may be granted provided certain specified cuts were made in
the film. The petitioner thereafter field the present petition seeking a declaration that the
25 AIR 1958 SC 578.
26 1976 78 Bom. L.R. 125.
27 AIR 1971 SC 117
18 | P a g e

provisions of Part 11 of the Cinematograph Act, 1952, together with the rules prescribed by the
Central Government on February 6, 1960 in the exercise of its powers under s. 5-B of the Act
were unconstitutional and void; he further prayed that the direction dated July 3, 1969 should be
quashed. The petitioner claimed that his fundamental right of free speech and expression was
denied by the order of the Central Government and that he was entitled to a 'U' Certificate for the
film as of right.
It was held that it has been almost universally recognised that the treatment of motion pictures
must be different from that of other forms of art and expression. The motion picture is able to stir
up emotions more deeply than any other product of art. Its effect particularly on children and
adolescents is very great since their immaturity makes them more willingly suspend
their disbelief than mature men and women. They also remember the action in the picture and try
to emulate or/ imitate what they have seen. Therefore, classification of films into two categories
of 'U' films and 'A' films is a reasonable classification. It is also for this reason that motion picture
must be regarded differently from other forms of speech and expression. A person reading a book or other
writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by
seeing a motion picture. Therefore the treatment of the latter on different footing is also a valid
classification.

19 | P a g e

MEDIA TRIALS
This concept has been floated only in the recent years where the media having the freedom of
speech and expression under Art 19(1)(a) uses the power of their communication medium to
reach out to the masses and criticize and at times pre-judge a case under judicial consideration in
the court of law which at times amounts to Defamation or Contempt of Court. The recent
example could be the Arushi Double Murder case where media virtually convicted the person
accused. Several recommendations have been made on this issue in the 200th report of the Law
Commission of India.28
The ever-increasing tendency to use media while the matter is sub-judice has been frowned down
by the courts including the Supreme Court of India on the several occasions. In State of
Maharashtra v. Rajendra Jawanmal Gandhi, the Supreme Court observed: There is procedure
established by law governing the conduct of trial of a person accused of an offence. A trial by
press, electronic media or public agitation is very antithesis of rule of law. It can well lead to
miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided
strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to
the question of sentence to be awarded to him in accordance with the provisions of law.
At the same time, the right to fair trial, i.e., a trial uninfluenced by extraneous pressures is
recognized as a basic tenet of justice in India. Provisions aimed at safeguarding this right are
contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215 of the
Constitution of India. of particular concern to the media are restrictions which are imposed on
the discussion or publication of matters relating to the merits of a case pending before a Court. A
journalist may thus be liable for contempt of Court if he publishes anything which might
prejudice a fair trial or anything which impairs the impartiality of the Court to decide a cause
on its merits, whether the proceedings before the Court be a criminal or civil proceeding.

28 AIR 1954 Pat 254.

20 | P a g e

STING OPERATIONS
Many argue that it no doubt brings transparency in the system but still it is an invasion into the
right to privacy of a person. The carrying out of a sting operation may be an expression of the
right to free press but it carries with it an indomitable duty to respect the privacy of others. The
individual who is the subject of a press or television item has his or her personality, reputation
or career dashed to the ground after the media exposure. He too has a fundamental right to live
with dignity and respect and a right to privacy guaranteed to him under Article 21 of the
Constitution.
The movement towards the recognition of right to privacy in India started with Kharak Singh v.
State of Uttar Pradesh and Others,29 wherein the apex court observed that it is true that our
constitution does not expressly declare a right to privacy as fundamental right, but he said right is
an essential ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v.
State of Madhya Pradesh and Another,30 it has been fully incorporated under the umbrella of
right to life and personal liberty by the humanistic expansion of the Article 21 of the
Constitution.

29 AIR 1963 SC 1295.

30 AIR 1975 SC 1379.
21 | P a g e

PRESS NEEDS TO BE RESPONSIBLE

Though, the press has played significant roles for public welfare but at times it act irresponsibly.
For instance the electronic media hyped the Abhi-Ash wedding in such a way that other
important news were neglected. In Prof. Sabharwals case, when Prof. Sabharwal was killed by
ABVP activists, there were a number of news channels & newspaper correspondent were present
& they had evidence of the murder but the media acted irresponsibly & the police called it an
Open & Shut Case. Recently, when Mumbai was under terror threat in 26/11 the media acted
irresponsibly by telecasting live the long sixty hour Operation Black Tornedo by the security
forces to combat the attack at The Taj Mahal Palace Hotel & Nariman House. It included live
feed of air dropping NSG Commandoes on the rooftop of Nariman House. At times news
channel covers news such as Bollywood Gossips & Page 3 etc which has reduced them to a
mere Entertainment Channel. There are many important issues which should be covered by the
media but unfortunately it does not. In April 2009, Union Home Minister P.Chidambaram was
addressing the media at a press conference a journalist threw a shoe at the minister on protest of
acquittal of a Congress leader accused of leading Anti-Sikh riots in 1984. The journalist named
Jarnal Singh was a reporter of Dainik Jagran, a local newspaper. Later on he apologized to the
Union Home minister for his act. This was one of the most condemnable acts which showed the
ugly side of the press.

In words of the Father of the Nation Mahatma Gandhi, "The role of journalism should be service.
The Press is a great power, but just as an unchained torrent of water submerges the whole
countryside and devastates crops, even so an uncontrolled pen serves but to destroy." There are
three pillars of a democracy viz. the legislative, the executive & the judiciary. The press acts as
the fourth pillar of a democracy. The press has played many significant roles in delivering
justice, public welfare etc.31
31 AIR 1995 SC 2485.
22 | P a g e

RESTRICTIONS ON FREEDOM OF PRESS IN

INDIA
The freedom of press comes within the ambit of freedom of speech & expression. In a
democracy, freedom of press is highly essential as it (the press) acts as a watchdog on the three
organs of a democracy viz. the legislature, the executive & the judiciary. But, the freedom of
press is not absolute in nature. It is subject to certain restrictions which are mentioned in Article
19(2) of the Constitution.
The following are the grounds of restrictions laid down in Article 19(2) :
1) Sovereignty & Integrity of India
2) Security of the State
3) Friendly relations with Foreign States
4) Public Order
5) Decency or Morality
6) Contempt of Court
The grounds of Public Order & Friendly relations with Foreign States was added by the
Constitution (First Amendment) Act,1951. While the ground of Sovereignty & Integrity of
India was added by the Constitution (Sixteenth Amendment) Act, 1963. 32
Sedition
Section 124A of the Indian Penal Code deals with the offence of sedition. It lays down that,
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
32 AIR 1954 Pat 254.
23 | P a g e

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. But Explanation 3 says 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. In Devi Saran v. State,33 the Court has held that Section 124A imposes
reasonable restriction on the interest of public order & therefore it is protected under Article 19
(2) of the Constitution.
Security of the State
Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest
of the security of the State. All the utterances intended to endanger the security of the State by
crimes of violence intended to overthrow the government, waging of war and rebellion against
the government, external aggression or war, etc., may be restrained in the interest of the security
of the State. It does not refer to the ordinary breaches of public order which do not involve any
danger to the State.
Friendly relations with foreign States
This ground was added by the Constitution (First Amendment) Act of 1951. The State can
impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardise
the friendly relations of India with other State.
Public order
This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the
situation arising from the Supreme Court's decision in Romesh Thapar, s case. The expression
'public order' connotes the sense of public peace, safety and tranquillity.
In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences between
three concepts: law and order, public order, security of State. Anything that disturbs public peace
33 AIR 1954 Pat 254.
24 | P a g e

or public tranquillity disturbs public order. But mere criticism of the government does not
necessarily disturb public order. A law punishing the utterances deliberately tending to hurt the
religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to
maintaining the public order.
It is also necessary that there must be a reasonable nexus between the restriction imposed and the
achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya 34, the
Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited
a single person not to pay or defer the payment of Government dues, as there was no reasonable
nexus between the speech and public order. Similarly, the court upheld the validity of the
provision empowering a Magistrate to issue directions to protect the public order or tranquility.

Decency and Morality

One of the heads on which freedom of the press can be restricted under the Constitution of India
is Decency and Morality. In matter of morality and obscenity courts do not always reflect
contemporary standards and perceptions though they purport to do so. Obscenity, indecency
and immorality are equivocal concepts. The standards set for these vary from one society to
another. Judges despite valiant efforts, have failed to evolve a satisfactory definition of obscenity.
Apparently, obscenity, like beauty lies in the eyes of the beholder. Sections 292 to 294 of the IPC
deal with this restriction. In India vulgarity and strong erotic language are often treated as interchangeable with obscenity. In its recent judgment concerning the movie, The Bandit Queen,35 the
court ruled that neither nudity nor vulgarity can necessarily be equated with obscenity.
Defamation
A statement which injures a mans reputation amounts to defamation. In India Sec 499 of the IPC
contains the criminal law relating to defamation. The civil law on the point is largely uncodified.
Libel laws can have chilling effect on the freedom of the press. The United States Supreme Court
34 AIR 1960 SC 633.
35 Bobby Art International v Om Pal Singh Hoon , (1996 ) 4 SCC 1.
25 | P a g e

in its landmark decision in New York Times v Suvillian36 ruled that every inaccurate statement
should not be actionable unless it is made with malice. This is because erroneous statements are
unavoidable in free debate in a democracy and must be tolerated if freedom of expression is to
have the breathing space it needs to survive The Supreme Court of India too has taken a similar
stand in R. Rajagopal v State of Tamil Nadu37 (Auto Shanker Case).

Contempt of Court
Contempt is another head of restriction on freedom of expression and freedom of the press. The
Supreme Court has upheld the constitutionality of the Contempt of Court Act,1952 on the
grounds that the Act did not impose unreasonable restriction on the right to freedom of speech
and is saved under Art 19(2).38 Courts have frowned upon comments made in the press upon
pending cases. The Punjab High Court ruled that liberty of the press is subordinate to the proper
administration of justice. The plain duty of a journalist is the reporting and not the adjudication
of cases.39
Today the law of contempt is such that in India, the country which proclaims satyameva
jayate , truth is no defence to an action of contempt.40 This is a serious anomaly.
Art 361-A of the Constitution also deals with contempt which was inserted after the Forty
Fourth Amendment Act,1978.

36 376 US 254.
37 (1994) 6 SCC 632 .
38 C.K. Daphtary v O.P Gupta, AIR 1971 SC 1132.
39 Rao Harnarain v Gumori Ram, AIR 1958 Punj. 273.
40 Bijoyananda v Bala Krishna AIR 1953 Ori 249.
26 | P a g e

CONCLUSION
In words of the Father of the Nation Mahatma Gandhi, "The role of journalism should be service.
The Press is a great power, but just as an unchained torrent of water submerges the whole
countryside and devastates crops, even so an uncontrolled pen serves but to destroy." There are
three pillars of a democracy viz. the legislative, the executive & the judiciary. The press acts as
the fourth pillar of a democracy. The press has played many significant roles in delivering
justice, public welfare etc.
The National Commission to Review the Working of the Constitution (NCRWC) has in its final
report submitted to the Government recommended that Article 19(1)(a) which deals with
freedom of speech & expression must expressly include the freedom of the press and other
media, the freedom to hold opinion and to seek, receive and impart information and ideas.
The ground realities are that a citizen is largely dependent on the press for the quality,
proportion, and the extent of news. He can seldom obtain for himself the information necessary
for the intelligent discharge of his political duties and responsibilities. In disseminating news, the
press therefore acts as a representative or, more appropriately, as the custodian of the public. It
serves public interest in pluralistic democracy by permitting expression and opinions of all
persons. Hence freedom of the press has a dimension and range that is vastly different from the
ambit and content of other individual freedoms. Press freedom embodies the principle of
accountability and thus enables press to be an instrument of democratic control. Protection and

27 | P a g e

promotion of free press is substance sub serves and strengthens democracy, an essential feature
of the Constitution.41
Freedom of press is undoubtedly one of the basic freedoms in a democratic society based on the
Rule of law. None the less freedom of press is not an end in itself. The public function which
belongs to the press makes it an obligation of honour to exercise this function with the fullest
sense of responsibility.
Joseph Pulitzer pointed out that commercialism has a legitimate place in a newspaper.
According to him, without high ethical ideals a newspaper is not only stripped of its splendid
possibilities for public service, but may become a public danger to the community. Press
freedom will depend not only on the state of the laws or the provisions of the Constitution but on
the integrity and independence of the press.
It has been sixty years since India became republic and commencement of the Constitution there
is been a lot of ups & down in our democracy and the press also has come across age. As being a
subject of the largest democracy of the world we should remember the words of our former
Prime Minister Rajiv Gandhi, Freedom of Press is an Article of Faith with us, sanctified by our
Constitution, validated by four decades of freedom and indispensable to our future as a Nation.
Thus, we can conclude that the time has come for the press of largest democracy of the world to
work with hand-in-hand with judiciary for the welfare of its subjects. The day is not far away
when there will be no eclipse of injustice & the sun of justice will shine brightly forever.

41 AIR 1954 Pat 254.

28 | P a g e

BIBLIOGRAPHY
BOOKS:

Basu Durga Das, Case Book on Indian Constitutional Law, 2nd ed., Kamal Law House,

Kolkata (2007).
Pandey, J. N., Constitutional Law of India, 42nd ed., Central Law Agency, Allahabad

(2005).
Gaur K.D., Textbook on The Indian Penal Code, 4th ed., Universal Law Publishing Co.,

Delhi(2010).
Rai Kailash, The Constitutional Law of India,7th ed., Central Law Publications,
Allahabad(2008).

ONLINE SOURCES:

www.cis-india.org
www.orissa.gov.in.
www.articles.economictimes.indiatimes.com.
www.newworldencyclopedia.org.
www.legalservicesindia.com.

29 | P a g e

30 | P a g e