The Practical Lawyer

Freedom of press in India : Constitutional Perspectives

Freedom of press in India : Constitutional Perspectives

by Dr. Mahendra Tiwari*
Cite as: (2006) PL December 7
The Freedom of press includes more than merely serving as a neutral conduit of information between the people and
their elected leader or as a neutral form of debate.

In India before Independence, there was no constitutional or statutory guarantee of freedom of an individual or
media/press. At most, some common law freedom could be claimed by the press, as observed by the Privy Council in
Channing Arnold v. King Emperor1:
The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the
in general may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The
range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.

With object and views, the Preamble of the Indian Constitution ensures to all citizens inter alia, liberty of thought,
expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of
Constitution and is transformed as fundamental and human right in Article 19(1)(a) as freedom of speech and expression

The present study is intended to present the provisions of the Indian Constitution and other national instruments which
recognise the freedom of press as an integral part of the freedom of speech and expression, the basic fundamental rights
of human being. It is also to be examined how far freedom of press has constitutional significance in achieving the free,
fair and real democracy. The study also covers the view taken by the Honble Supreme Court on the subject.

The main object of providing guaranteed freedom of press is for creating a fourth institution beyond the control of State
authorities, as an additional check on the three official branchesthe executive, the legislature and the judiciary.2 It is the
primary function of the press to provide comprehensive and objective information on all aspects of the countrys social,
economic and political life.

For achieving the main objects, freedom of the press has been included as part of freedom of speech and expression
which is a universally recognised right adopted by the General Assembly of the United Nations Organization on 10th
December, 1948. The heart of the declaration contained in Article 19 says as follows:
Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions w
interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The same view of freedom of holding opinions without interference has been taken by the Supreme Court in Union of
India v. Assn. for Democratic Reforms3 in which the Court has observed as follows: (SCC p. 317, para 38)
[O]ne-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 India, freedom of press is implied from the freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution of India. Article 19(1)(a) says that all citizens shall have the right to freedom of speech and expression. But
this right is subject to reasonable restrictions imposed on the expression of this right for certain purposes under Article
19(2).

Article 19(1)(a) corresponds to the First Amendment of the United States Constitution which says, congress shall make
no law abridging the freedom of speech or of the press4. The provisions in the US Constitution has two notable features
i.e.:

- freedom of press is specifically mentioned therein,

- no restrictions are mentioned on the freedom of speech. But the Supreme Court of India has held that there is no
specific provision ensuring freedom of the press separately. The freedom of the press is regarded as a species of which
freedom of expression is a genus. Therefore, press cannot be subjected to any special restrictions which could not be
imposed on any private citizen,5 and cannot claim any privilege (unless conferred specifically by law), as such, as distinct
from those of any other citizen. Freedom of the press has three essential elements. They are:

- freedom of access to all sources of information either of ones own views or borrowed from someone else or printed
under the direction of the person,6
- freedom of publication, and
- freedom of circulation.7 Freedom of speech is the bulwark of democratic Government. In a democracy, freedom of
speech and expression opens up channels of free discussion of issues. It implies that there should be a close link
between the Government and the people. Freedom of speech plays a crucial role in the formation of public opinion on
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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.8

Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P)
Ltd. v. Union of India9 has stated:
In todays free world freedom of press is the heart of social and political intercourse. The press has now assumed the ro
of the public educator making formal and non-formal education possible in a large scale particularly in the developing
world, where television and other kinds of modern communication are not still available for all sections of society. The
purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic
electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a
bearing on public administration very often carry material which would not be palatable to Governments and other
authorities.

The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of
the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious
that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently
exercise his right of making a choice, free and general discussion of public matters is absolutely essential.10 This
explains the constitutional viewpoint of the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO11 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.

The fundamental principle which was involved in freedom of press is the peoples right to know. It therefore received
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.12

In R. Rajagopal v. State of T.N.13 the Supreme Court of India has held that freedom of the press extends to engaging in
uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life,
a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed
in terms of the democratic way of life laid down in the Constitution.

Therefore, in view of the observations made by the Honble Supreme Court in various judgments and the views
expressed by various jurists, it is crystal clear that the freedom of the press flows from the freedom of expression which is
guaranteed to all citizens by Article 19(1)(a). Press stands on no higher footing than any other citizen and cannot claim
any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen. The press cannot
be subjected to any special restrictions which could not be imposed on any citizen of the country.

Freedom of press areas of reasonable restrictions

Lord Denning in his book Road to Justice observed that press is the watchdog to see that every trial is conducted fairly,
openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour.

The dangers of the uncanalised discretion given to Lok Adalats have been recognised by some States and pursuant to
Section 28 of the Legal Services Authorities Act, Regulations have been framed in relation to the conduct of Lok Adalats.
The Kerala Regulations, 1998, framed by the Kerala Legal Services Authority (KELSA), provide a model of good
practice. Regulation 28 makes it mandatory for notice to be issued to the parties in a dispute in order to enable them to
prepare their case. This embodies the right to a fair hearing. Regulation 31 explicitly lays down that the Bench is to
restrain itself to a conciliatory role and make efforts to bring about a settlement without bringing about any kind of
coercion, threat or undue influence, allurement or misrepresentation. Under Regulation 33, the Bench is required to
obtain the signatures of the parties to the dispute, in addition to the signatures of the Members of the Bench. This
Regulation ensures that the parties are given adequate notice and are present during the proceedings.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to
place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or
completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing
reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of the pub
the following grounds:

- security of the State,

- friendly relations with foreign States,
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- public order,
- decency and morality,
- contempt of court,
- defamation,
- incitement to an offence, and
- sovereignty and integrity of India. Grounds contained in Article 19(2) show that they are all concerned with the national
interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States and public order are all grounds referable to national interest, whereas,
the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are all
concerned with the interest of the society.

As we concern with the restrictions imposed upon the media, it is clear from the above that a court evaluating the
reasonableness of a restriction imposed on a fundamental right guaranteed by Article 19 enjoys a lot of discretion in the
matter. It is the constitutional obligation of all courts to ensure that the restrictions imposed by a law on the media are
reasonable and relate to the purposes specified in Article 19(2).

In Papnasam Labour Union v. Madura Coats Ltd.14 the Honble Supreme Court has laid down some principles and
guidelines to be kept in view while considering the constitutionality of a statutory provision imposing restriction on
fundamental rights guaranteed by Articles 19(1)(a) to (g) when challenged on the grounds of unreasonableness of the
restriction imposed by it.

In Arundhati Roy, In re15 the Honble Supreme Court has considered the view taken by Frankfurter, J. in Pennekamp v.
Florida16 in which Judge of the United States observed: (US p. 366)
If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges
would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to
punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given
to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a
safeguard not for judges as persons but for the function which they exercise.

In Rajendra Sail v. M.P. High Court Bar Assn.17 the editor, printer and publisher and a reporter of a newspaper, along
with the petitioner who was a labour union activist, were summarily punished and sent to suffer a six months
imprisonment by the High Court. Their fault was that on the basis of a report filed by a trainee correspondent, they
published disparaging remarks against the judges of a High Court made by a union activist at a rally of workers. The
remarks were to the effect that the decision given by the High Court was rubbish and fit to be thrown into a dustbin
appeal the Supreme Court upheld the contempt against them, but modified and reduced the sentence.

In D.C. Saxena (Dr.) v. Chief Justice of India18 the Honble Supreme Court has held that no one else has the power to
accuse a judge of his misbehaviour, partiality or incapacity. The purpose of such a protection is to ensure independence
of judiciary so that the judges could decide cases without fear or favour as the courts are created constitutionally for the
dispensation of justice.

By these above observations and the judgment we can say that restrictions imposed by Article 19(2) upon the freedom of
speech and expression guaranteed by Article 19(1)(a) including the freedom of press serve a two-fold purpose viz. on the
one hand, they specify that this freedom is not absolute but are subject to regulation and on the other hand, they put a
limitation on the power of a legislature to restrict this freedom of press/media. But the legislature cannot restrict this
freedom beyond the requirements of Article 19(2) and each of the restrictions must be reasonable and can be imposed
only by or under the authority of a law, not by executive action alone.

Conclusion and suggestions

In democracy, the Government cannot function unless the people are well informed and free to participate in public
issues by having the widest choice of alternative solutions of the problems that arise. Articles and news are published in
the press from time to time to expose the weaknesses of the governments. The daily newspaper and the daily news on
electronic media are practically the only material which most people read and watch. The people can, therefore, be given
the full scope for thought and discussion on public matter, if only the newspapers and electronic media are freely allowed
to represent different points of views, including those of the opposition, without any control from the Government. The
following suggestions are offered in this connection:

- Freedom of press may be inserted as a specific fundamental right under Article 19 of the Constitution of India.
- Parameters of freedom of press should be clearly earmarked.
- Information must be available at an affordable cost within specified, definite and reasonable time-limits.
- Free press should not violate right to privacy of an individual.
- Free press must be law enforcing and preventive of crime.
- Rule of law must be followed by the free press.
- Influence through free press upon the judiciary should not be exercised.* LLM PhD, Vice Principal, Rajputana Vidhi
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Mahavidyalaya, JPR.

- AIR 1914 PC 116, 117

- New York Times Co. v. Sullivan, 376 US 255 (1964). New York Times Co. v. United States, 403 US 713 (1971) (known
as the Pentagon Papers case)
- (2002) 5 SCC 294
- See M.P. Jain, Indian Constitutional Law, (5th Edn.).
- Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
- M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 402
- Romesh Thappar v. State of Madras, 1950 SCR 594, 607
- Report of the Second Press Commission, Vol. I, 34-35
- (1985) 1 SCC 641 at p. 664, para 32.
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248
- (1994) 2 SCC 434
- Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641
- (1994) 6 SCC 632
- (1995) 1 SCC 501
- (2002) 3 SCC 343
- 328 US 331 : 90 L Ed 1295 (1946)
- (2005) 6 SCC 109 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee, J.)
- (1996) 5 SCC 216

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