SUBJECT: TELECOMMUNICATIONS, PRESS

AND MEDIA LAW.

Project topic:
NEED FOR FREEDOM OF PRESS

Submitted By
Ankit pandey
Roll no. 1309
5 Year , 9 Semester, B.A.LL.B(Hons.)
th th

Submitted to
Ms. Sadaf fahim
Faculty of MEDIA LAW

Chanakya national Law University, Patna

september, 2019
 CERTIFICATE OF DECLARATION

I/We hereby declare that the research paper titled Need for Freedom of Press submitted by
me is based on actual and original work carried out by me. Any reference to work done by
any other person or institution or any material obtained from other sources have been duly
cited and referenced.
 ACKNOWLEDGEMENT

I feel highly elated to present the project Research on “NEED FOR FREEDOM OF PRESS”,
which owes its very existence to a number of people without thanking whom, I would fail to do
proper justice to its original profounder.

Firstly, I would like to thank the Telecommunications, Press And Media Law Subject Faculty,
Ms. Sadaf Fahim for showing her belief in me and considering me potent enough to carry out
the research methodology, and thereby assigning the said topic to me. In fact without her
continuous exemplary guidance and worm- view criticism the project could never have reached
its current stature.
Secondly, I would like to extend my sincere acknowledgement towards the Librarian of CNLU,
for making all the reading materials available relevant for my Research Paper, within such short
notice. In fact the CNLU Library came up as an excellent source for all the requisite data.
Thirdly, I would like to thank the Managing staff of CNLU, for providing me with the facility
of 24 hours/ 7 days a week Internet connection, since the search engines namely,
www.google.com, www.bing.com, where an indispensable need to facilitate data access within
fractions of seconds.

ANKIT PANDEY

ROLL NO. 1309

 TABLE OF CONTENT

• AIMS AND OBJECTIVES

• HYPOTHESIS
• RESEARCH METHODOLOGY

CHAPTERISATION
PAGE

1) MEANING OF THE FREEDOM OF PRESS. 06-09

2) FREEDOM OF PRESS AND ITS SIGNIFICANCE

IN INDIA 10- 17

3) COMPARISON WITH THE AMERICAN CONSTITUTION 18-21

4) CURRENT SCENARIO OF FREEDOM OF PRESS IN

INDIA 22- 25

5) CONCLUSION AND SUGGESTIONS 26-28

- BIBLIOGRAPHY 29

4|Page
Aims and Objectives
The objectives behind this project are:
1. To analyse the concept of freedom of press and its significance in India
2. To discuss the constitutional perspective of freedom of press in India and the
reasonable restrictions imposed in the light of landmark judgements
3. To determine the current scenario of freedom of press in India in view of recent incidents
and cases
4. To examine the constitutional provisions of freedom of press in U.S.A in comparison
with India
5. To recommend and suggest measures for ensuring Freedom of Press in India striking
a balance with the other fundamental rights guaranteed to the citizens.

Hypothesis
The Researcher hypotheses are:
st
1. The concept of Freedom of Press evolved in India from U.S Constitution 1
amendment as Fundamental Rights chapter is taken from it as well.
2. The freedom of press is not dealt in India by separate provision as in U.S.A but
covered under article 19(1)(a) of Indian Constitution same as for other citizens.
3. In current scenario the freedom of Press is getting curtailed due to governments‟ actions.

Research Methodology
The researcher aims to research with „Doctrinal Method‟ by referring to books, journals,
articles, Bare acts, documentary, cases prevalent and the online sources as Research Paper.

5|Page
 CHAPTER- I
INTRODUCTION
MEANING OF THE FREEDOM OF PRESS

Freedom of the press or freedom of the media is the principle that communication and expression
through various media, including printed and electronic media, especially published materials,
should be considered a right to be exercised freely. Such freedom implies the absence of
interference from an overreaching state; its preservation may be sought through constitutional or
other legal protections.

With respect to governmental information, any government may distinguish which materials are
public or protected from disclosure to the public. State materials are protected due to either of
two reasons: the classification of information as sensitive, classified or secret, or the relevance of
the information to protecting the national interest. Many governments are also subject to
sunshine laws or freedom of information legislation that are used to define the ambit of national
1
interest .

"Everyone has the right to freedom of opinion and expression; this right includes freedom to

hold opinions without interference, and impart information and ideas through any media

2
regardless of frontiers".

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
3
or other protection.

"The press is the only to sin of a nation. When it is completely silenced... all means of a general
effort are taken away." --Thomas Jefferson

1 Powe, L. A. Scot (1992). The Fourth Estate and the Constitution: Freedom of the Press in America.
University of California Press.
2 The United Nations 1948 Universal Declaration of Human Rights
3 http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.htm last visited on
01. 09. 2018 .

6|Page
Freedom of speech and expression is the blood of democracy, palpitation of democracy, control
of the government and creates awareness among the people. Blood removes the dead cell in the
same manner freedom of speech and expression removes the arbitrary government and place a
democratic government. This paper evaluates the contribution and necessity of freedom of press
in a democracy.

The liberty of the press is the palladium of all the civil, political, and religious rights.[i] In a
democratic set up the press can act as a bridge between the government and the people. This
right is very important at the stage of the formation of the government. Democracy can not
survive without this right. Press is the fourth pillar of the democracy, which exercise this right of
freedom of speech and expression. The rights originate from the US constitution. The role of
media is important as a feedback, exposure, and conduit mechanism in all countries. Most
citizens receive their information about what is going on in the government, and how it affects
them, through the filter of the media. The media have also played a traditional watchdog and
gadfly role, in investigating misbehaviour by politicians and officials and private business, a role
traditionally summarized as “comforting the afflicted and afflicting the comfortable.” The media
is thus a crucial instrument of accountability, in addition to being an instrument of
communication. A free press and free media rank along with an independent judiciary as one of
the two institutions that can serve as powerful counter forces to corruption in public and private
4
life .

5
The Freedom of the press is regarded as a “species of which freedom of expression is a genus.”
Freedom of the press is the freedom of communication and expression through vehicles
including various electronic media and published materials. While such freedom mostly implies
the absence of interference from an overreaching state, its preservation may be sought through
constitutional or other legal protections.

It has been said that the price of liberty is eternal vigilance. The institution that maintains that
vigil is the press or the media. In other words, if the people are to be free, it is the job of the

4 Ibid
5 Sakal papers v. Union of India, AIR 1962 SC 305: (1962) 3 SCR 842.

7|Page
media to ensure that it keeps a watch on those in power in whose hands the freedom lies. In order
6
to do so, press that is free of any outside influences or influencers is absolutely vital .

Importance of Freedom of Press

The press has a responsibility to act as check and balance for the administration and the
government. It is the press that raises its voice against social ills, malpractices, corruption and
oppression. It is also the press that gathers, verifies and distributes events, facts and information
7
that allow the people of a country to make sound judgments .

However, none of this is possible if the press itself is silenced or if its voice is only allowed when
those in power permit. The information that comes from the press at such a time becomes
suspect. Worse yet, the press may not be allowed to report news or express opinions that run
contrary to what the people in power want. This means a citizenry that is woefully uninformed
and, therefore, powerless.

This is not mere speculation. Time and time again, recent history has proven that censorship of
the press is one of the most common features of a dictatorship. The censorship may not even be
direct or obvious at first. A government may often start by discrediting the news media and what
is being reported. It may stridently reinforce the notion that the media cannot be trusted by
8
undermining the news and facts that media presents to the public .

This is when the media begins to exercise self-censorship to avoid outrage manufactured by the
government. As time passes, this self-censorship may become more ingrained or such distrust for
the news media may develop among the people that they call for the government to intervene. Of
course, once the media is muzzled, there is no one to report truths. In the absence of those truths,
9
the citizenry has no power to affect the necessary changes and the government reigns supreme .

No right is absolute. This is true even for the right to freedom of speech or expression. However,
the right does exist and as long as it does, the power lies in the hands of the people. Since the

6 ibid
7 https://www.thehindu.com
8 ibid
9 https://www.article19.org/data/files/pdfs/publications/iran-art-censorship

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freedom of the press also falls under this right, it is clear that the press is the tool that indirectly
protects all other rights that a people may enjoy. Curbing the freedom of the press is, thus,
10
curbing the freedom of the people .

Roles of Press and Judiciary

It is the responsibility of the media to bring forth news and facts that will shape public opinion
and allow the citizens of a country to exercise their rights. The judiciary‟s role is to protect those
rights. Therefore, it becomes clear that in order to function efficiently, both the media and the
judiciary must be independent of any outside influences that may attempt to skew information or
legal decisions.

However, the roles of these two institutions do not end here. The judiciary is also responsible for
protecting the freedom of the press. At the same time, the press is responsible for reporting facts
and events in a manner that helps the judiciary make impartial legal decisions that can affect the
course of a nation. While it is the media‟s job to raise important issues and update the citizens of
11
a country, it is the judiciary‟s job to ensure that it can do so without interference.

The two systems also act as checks and balances for each other. The right to freedom of speech
and expression isn‟t absolute and it is up to the judiciary to decide when the press is being
denied this right and when it cannot exercise this right. On the other hand, it is up to the media to
ensure that the judiciary dispenses justice in a transparent and effective manner.

There are four pillars that support a working democracy – the executive, legislature,
judiciary and press. Of these, the latter two are vital to the proper functioning of a democracy.
Each must protect and reinforce the other in order for the power to remain in the hands of the
12
people in a democracy .

10 ibid
11 https://www.lawctopus.com/academike/role-media-democracy-good-governance/
12 www.legalserviceindia.com/article/l294--Fourth-Estate.

9|Page
 CHAPTER II

FREEDOM OF PRESS AND ITS SIGNIFICANCE IN INDIA

Freedom of the press is the freedom to communicate and express through mediums including
various electronic media and published materials. It refers to the right to print, publish,
disseminate, circulate and distribute publications without any interference from the state or any
other public authority. Freedom of press is implicit in Article 19(1) (a) of the Constitution of
13
India . However, this Freedom, like any other freedoms, is not absolute and is subject to well
known exceptions in the public interests. Press generally refers to the newspaper industry. But in
the modern era, besides newspapers, The United Nations 1948 Universal Declaration of Human
Rights there are various forms of news media that includes television, radio broadcasting and
online news websites.

Freedom of press and media is recognized as an essential attribute of a parliamentary democracy.

14
“A free press is the mother of all liberties and of our progress under liberty.”

Justice Jeevan Reddy and Justice B.N. Hansaria in the Printers (Mysore) Limited v. State
of Karnataka stated that “freedom of press has always been a cherished right in all democratic
countries. The democratic credentials of a State are judged today by the extent of freedom the
15
press enjoys in that state.” For the proper functioning of any democracy it is important that
citizens are kept informed about what is happening within the country. Press and media serves as
an agency of the people; bringing forward the real picture of the society. Hence the freedom of
press and media is a necessary pre-requisite in fulfilling the democratic ideologies.

Besides, a free and vigilant press is vital to prevent corruption and injustice, at least to the extent
that public opinion can be aroused as a consequence of press investigations and comments. In
fact, the main purpose of the free press is to create a fourth institution outside the government to
serve as an additional check on the three organs of government namely executive, legislative and
judiciary.

13 Constitutional Law of India Paperback – 2015 by Dr. S. M. Rajan (Author), Dr. P. K. Jain (Author)
14 Adlai Stevenson
15 A.I.R 1994 S.C 23

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FREEDOM OF PRESS: CONSTITUTIONAL PERSPECTIVE IN INDIA

Freedom of press is not expressly provided under the Constitution of India. It is implied from the
freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution of India. In
interpretation of this guaranteed right,

16
Patanjali Shastri, J., in Romesh Thapper v. State of Madras , remarked that “there can be no
doubt that freedom of speech and expression includes freedom of propagation of ideas, and that
freedom is ensured by the freedom of circulation. Indeed, without circulation the publication
would be of little value.”

Likewise, interpreting the words “freedom of speech and expression” the Madras High Court
observed that “the term „freedom of speech and expression” would include the liberty to
propagate not only one‟s own views but also the right to print matters which are not one‟s own
but have either been borrowed from someone else or are printed under the direction of that
17
person.” Hence “liberty of press is an essential part of the right to freedom of speech and
18
expression declared by Article 19 (1) (a)”

However being a right emanating from the freedom of speech and expression, the freedom of
press in India stands on an equivalent footing as that of a citizen. In other words, press enjoys no
privilege distinct from that guaranteed to a citizen. Like any other freedom, the freedom of press
is not absolute. It is subjected to reasonable restrictions as mentioned under Article 19(2). Thus
the guarantee of the above right would not affect the operation of any existing law, in so far as it
is related to, or prevent the state from making any law relating to libel, slander, defamation,
contempt of court or any matter which offended against the decency or morality or which
undermined the security of or which tended to overthrow the state.

Reasonable restrictions

Article 19 (2) allows the State to make laws with the object of imposing reasonable restrictions
on the exercise of the right conferred by Article 19 (1) (a) in the interest of:

16 1950 S.C.R 594 at 597

17 Srinivasa Bhat v. State of Madras, A.I.R. (1951) Madras 70 at 73
18 Brij Bhushan v. State of Delhi, 1950 S.C.R.605 at 608

11 | P a g e
a . Public Order and Security of State

If an act has tendency to cause public disorder it would be a valid ground under Article 19 (2) to
impose restrictions, even though it may not lead to breach of public order. Public order is a state
of tranquillity that prevails amongst the members of a political society as a result of the internal
19
regulations enforced by the Government which they have established. And “security of state”
refers to a serious and aggravated form of public disorder. The speeches and expressions which
20
encourage violent crimes are related to security of State.

b . Defamation

Defamation is an injury to the reputation of a person. Freedom of press is mostly related to libel
which is written defamatory statement. If a person‟s reputation is harmed without justifiable
reason, he can be prosecuted for the criminal wrong of defamation. The law of criminal
defamation is contained in section 499 and 500 of Indian Penal Code. Supreme Court in
Philadelphia Newspapers, Inc. v. Hepps, held that private individuals suing for libel must prove
21
the statement was false if it involved a matter of public concern.

c . Contempt of Court

While exercising the right of freedom of expression one should not commit contempt of court or
22
make any comment which could be contempt . The newspapers and media channels have right
to publish reports on the proceedings of the court, subject to the orders of the court resolving the
dispute. If the court specifically orders not to publish a particular evidence of a witness, that
cannot be called as an invalid order. However, truth of criticism against curt by media is
available as a defence available to writer or press or media to the charge of contempt of court.

d . Incitement to an offence

19 Ramesh Thapper v State of Madras, AIR 1950 SC 124

20 State of Bihar v ShailaBala, AIR SC329
21 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)
22 E.M.S Namboodiripad v. T.N. Nambiar, AIR 1970 SC 2015

12 | P a g e
If any words written or spoken incite the commission of violent crimes, which include attempts
to insult the religious beliefs of any class, reasonable restrictions can be imposed. Promotion of
disharmony among the classes also can be restricted on the same ground.

23
In State of Bombay v. Balsara the Supreme Court upheld the validity of section 24(1) (b) of
the Bombay Prohibition Act, 1949. It provided that no person shall print or publish in any
newspaper, news sheet, book, leaflet or any other single or periodical publication or otherwise
display or distribute any advertisement or other matter which is calculated to encourage or incite
any individual or class of individuals or the public generally to commit an offence under the Act.

e . Friendly relations with foreign states

This is another ground justifying the restriction on freedom of speech and expression. State
cannot however prevent all the criticism of foreign policy of the Government. The Covenant on
Freedom of Information and the Press prepared by the United Nations Conference at Geneva
provide for necessary legislative restrictions being placed with regard to the “systematic
diffusion of false and distorted reports which undermines the friendly relations between people
24
and states.”

f . Decency and morality

25
In Regina v Hicklin the court adopted the test of obscenity, which is known as the Hicklin
test. The test of obscenity is to note whether the tendency of matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences. Freedom of speech
and expression can be reasonable restricted in case it hampers with the decency and morality.

g . Sovereignty and integrity of India

This ground was added subsequently in 1963 by the Constitution (Sixteenth Amendment).

This is provision is aimed at prohibiting anyone from making the statements that challenge the
integrity and sovereignty of India.

23 1951 AIR 318

24 Art. 2 (j) of the Covenant on Freedom of Information and the Press
25 [1968] 3 QB 360

13 | P a g e
 26
In Rajendra Sail v. M.P High Court Bar Assn , the editor, printer publisher and reporter of a
newspaper, along with the petitioner who was a labour union activist, were summarily punished
with a six months imprisonment by the High Court. Their fault was that they published
derogatory remarks against the judges of a High Court. The Supreme Court held it to be
contempt of court.

27
In D.C Saxena v. Chief Justice of India , the Supreme Court held that no one has the power
to accuse a judge of his misbehaviour, partiality or incapacity. The purpose of such protection is
to ensure independence of judiciary.

Thus the state has general power to impose reasonable restrictions. Also it must be noted that
these restrictions should not be arbitrary and excessive. There should be a balance between the
freedom guaranteed and the community interest protection.

Relevant case laws

28
1. Bennett Coleman & Co. & Ors v. Union Of India & Ors

In this case the petitioners challenged the Newsprint Order (1962) and the Newsprint Policy

(1972). The Newsprint Order placed certain restrictions upon the import of newsprint
(complementarily, publishing newspapers in material other than newsprint was prohibited);
while the Newsprint Policy prohibited common ownership units from starting new newspapers,
limited the maximum number of pages to ten, and allowed a twenty percent increase in page
level to newspapers that had less than ten pages. The Supreme Court rejected this contention and
found the provisions of the Order to be in violation of Article 19(1) (a) of the Constitution of
India. The Court also struck down the rebuttal of the Government that it would help small
newspapers to grow.

29
2. Sakal Papers Ltd v. Union of India

In this case, the Daily Newspaper (Price and Control) Order 1960, which fixed a minimum price
and number of pages which a newspaper was entitled to publish was challenged by the petitioner

26 [2005] INSC 272 (21 April 2005)

27 1996 SCC (7) 216
28 1973 AIR 106
29 1962 AIR 305

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on the ground that it infringes the freedom of press. The petitioner had to increase the price of
their newspaper without increasing the pages. It was seen that an increase in price without any
increase in number of pages would reduce the volume of circulation.

On the other hand, any reduction in the number of pages would lessen the space of the column,
space for news, views or ideas. The State justified the law as a reasonable restriction on a
business activity of a newspaper in the interest of the general public. However the court struck
down the order rejecting the argument of the State and held that right of freedom of speech and
expression cannot be taken away placing the restrictions on the business activity of a citizen.

30
3. Ramesh Thapper v. State of Madras

In the instant case, a law formulated by the Government of Madras in banning the entry and
circulation of an English journal "Cross Road", printed and published in Bombay within its state
was challenged by the petitioner. The Court held that freedom of speech and expression includes
freedom of propagation of ideas, and this freedom is ensured by the freedom of circulation .A
law which imposes restrictions on grounds of „public safety or the „maintenance of public order‟
falls outside the scope of the authorized restrictions under clause (2) and is therefore void and
unconstitutional.

31
4. Brij Bhushan v. State of Delhi

In this case, the Chief Commissioner of Delhi issued an order under Section 7 of the East Punjab
Safety Act, 1949, which required the editor, printer and publisher of a English weekly of Delhi to
submit it for scrutiny all communal matters, news and views, about the Pakistan include ing the
photographs and cartoons other than those derived from official source of supplied by the news
agencies. The court struck down the order and held that pre-censorship of a journal is a
restriction on the liberty of press. The court further laid down that prohibiting a newspaper from
publishing its own views was nothing but a serious encroachment on the freedom of speech and
expression.

32
5. Express Newspapers v. Union of India

30 AIR 1950 SC 124

31 AIR 1950 SC 129
32 20 AIR 1958 SC 578

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In this case the validity of the Working Journalist Act 1955 which was enacted to regulate
conditions of service of persons employed in newspaper industries was challenged. The court
held that press was not immune from laws of general application or ordinary forms of taxation or
laws of industrial relations .Since the Act was passed to improve the service conditions of the
women in the newspaper industry, it was found to be valid.

33
6. R.Rajagopal v. State of Tamil Nadu

The Supreme Court held that the government has no authority in law to impose a prior – restrain
upon publication of defamatory material against its officials. Public authorities who apprehend
that they or their colleagues may be defamed by the publication of any material cannot prevent
from exercising their freedom. The court was of the opinion that if the matter in the publication
was based on false facts on in any manner injurious, the concerned persons could take action for
damages after the publications. However no action could be taken prior to the publication.

Court further held that the right to privacy and right of freedom of press have to be balanced.

If publication of truth is in public interest it would not amount to defamation. On the other hand,
if it has got nothing to do with public interest and relates to privacy of an individual, then it
would certainly be defamatory. In the instant case, the petitioners were entitled to publish the
autobiography by Auto Shankar as it appeared from public records.

34
7. Printers (Mysore) Ltd v. Assistant Commercial Tax Officer

In the instant case, the Supreme Court held that no sales tax could be imposed on the sale of
newspapers in the country. However the court clarified that this does not mean that press shall be
immune either from taxation or from general law relating to industrial relations or from the State
regulation of services of its employees. The prohibition is applicable only on the imposition of
any restriction to disseminate information and to the circulation of the newspaper.

35
8. Virendra v. State of Punjab

In the this case, in respect of a publisher being prohibited to publish his view the Supreme Court
observed that it is certainly a serious encroachment on the valuable and cherished right to

33 199 AIR 1957

34 1994 SCC (2) 434
35 SC 8964( 6) SCC 632

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freedom of speech, if a newspaper is prevented from publishing its own view or the view of its
correspondents.

ROLE OF PRESS IN THE ADMINISTRATION OF JUSTICE

36
In State v.Siddharth Vashisth & Manu Sharma popularly called as the Jessica Lal murder

case, following an intense media and public pressure, the prosecution appealed and the Delhi

High Court conducted proceedings on a fast track with daily hearings. The trial court judgment
was overturned, and Manu Sharma was found guilty of having murdered Lal. He was sentenced
to life imprisonment on 20 December 2006.

37
Similarly in State (Through CBI) v. Santhosh Kumar Singh , popularly called as the
Priyadarshini Mattoo case, the intense media spotlight led to an accelerated trial, unprecedented
in the tangled Indian court system. The case is one of several in India that highlight the
ineffectiveness of traditional criminal law system, especially when it comes to high profile
perpetrators. The acquittal of Santosh Singh in the case in 1999 had led to a massive public
outcry and the investigating agency CBI, under considerable pressure, challenged the judgment
in the Delhi High Court on February 29, 2000. Another case was

38
that of the Dr. Rajesh Talwar And Another v. Central Bureau Of Investigation26 , known
as the Aarushi murder case. The high-profile Arushi/Hemraj twin murder case is a classic
example where media's effort was lauded as well as criticized. One of the victims was a student
of an elite school, her well-heeled doctor parents were the suspects. After Jessica Lal and
Priyadarshini mattoo case, this case was also under intense media scrutiny after the case was
marked with shoddy investigation.

39
Vishal Yadav v. State of Delhi is another case in which the media played a very important
role in bringing the criminals before law.

36 2001 IIAD Delhi 829,2001 Cri LJ 2404,90(2001)DLT 548

37 2007 Cri LJ 964,133(2006)DLT 393
38 26 2013 (82) ACC 303
39 116(2005)DLT 341,2005(79)DRJ 254

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 CHAPTER III

COMPARISON WITH THE AMERICAN CONSTITUTION

The United States has one of the world‟s strongest systems of legal protection for freedom of the
press. The First Amendment of the U.S. Constitution provides the core guarantee of press
freedom and freedom of speech. It reads Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble and to petition the government for a
40
redress of grievance. Article 19(1) (a) finds its roots in the First

Amendment to the Constitution of the United States of America.

Unlike the Indian Constitution, the First Amendment to the American Constitution makes a
specific or separate provision for the freedom of press. Further, while the restriction on the right
to freedom of speech and expression are expressly spelt out in Article 19(2), this is not so under
the First Amendment. The US Supreme Court has read into the rights of the press certain implicit
restrictions which are, in principal, no different from Article 19(2). One such restriction is the
defamation law. The courts have given the press broad protection from libel and defamation suits
that involve commentary on public figures, though libel formally remains a criminal offense in a
number of states.

41
In deciding New York Times Co. v. Sullivan , The Supreme Court held that when a
publication involves a public figure, in order to support a suit for libel, the plaintiff bears the
burden of proving that the publisher acted with "actual malice,"

Under the American Constitution, the free press clause protects the rights of individuals to
express themselves through publication and dissemination of information, opinions and ideas
without the interference from the government.

42
In Miami Herald Publishing Co. v. Tornillo , the Court unanimously struck down a state law
requiring newspapers criticizing political candidates to publish their responses. The state claimed
that the law had been passed to ensure press responsibility. Finding that only freedom, and not

40 US Constitution , First Amendment , Article 1

41 376 U.S 254 (1964)
42 418 U.S 241

18 | P a g e
press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the
government may not force newspapers to publish that which they do not desire to publish. In
43
Branzburg v. Hayes this right was described as a fundamental right that is not merely
confined to newspapers and periodicals. In Lovell v. City of Griffin,32”press” was defined as
“every sort of publication which affords a vehicle of information and opinion. This right has
been extended to include

44
Lovell v. City of Griffin, newspapers, books, movies as well as video games. Similarly
people who blog, Twitter or use other social media are protected equally by the free speech and
free press clause. In Obsidian

Finance Group, LLC. v. Cox, (2014) The United States Court of Appeals for the Ninth Circuit
held that a blogger is entitled to the same free speech protections as a traditional journalist and
cannot be liable for defamation unless the blogger acted negligently. As far as India is
concerned, Section 66A of the Information Technology Act, 2000, had criminalized the
publishing of any information on Facebook, Twittter and other website that could be deemed to
be "false, or was for the purpose of causing annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred or ill will.

45
However recently on 24thMarch 2015, in Shreya Singhal v. Union of India , the court struck
down section 66A of the Information Technology Act 2000 both in terms of “liberty of the
individual” and from the point of view of democratic governance.

Thus it can be concluded that for the most part, from a legal and social viewpoint the freedom of
the press in America is far more robust in comparison to the Indian guarantee.

FREEDOM OF PRESS VIS-A-VIS FUNDAMENTAL RIGHTS: THE NEED TO

STRIKE A BALANCE

Human beings across the world have always strived to strike a balance between working and
resting, reporting and judging, befriending and avoiding, warmth and coldness, speech and
expression, joy and frustration and many intermingled aspects of daily and social life. Likewise,

43 408 US. 665

44 303 U.S. 444
45 (2013) 12 S.C.C. 73

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in the modern era where television and internet sweeping information across the world in a
matter of seconds, the Supreme Court of India is attempting to strike a balance between the
media‟s right to freedom of speech and expression and other fundamental rights such as rights of
the accused to a fair trial, protection of witnesses, public's right to know and right to privacy

Freedom of press and fair trial

“The tension between the courts and the media revolves around two general concerns. The first is
that there should be no „trial by media'; and the second is that it is not for the press or anyone
else to „prejudge' a case. Justice demands that people should be tried by courts of law and not be
46
pilloried by the press.”

Media trials put at risk the due process of administration.

47
In Sushil Sharma v. The State (Delhi Administration) and Ors it was held by the Delhi
High Court that conviction, if any,

would be based not on media's report but what facts are placed on record.

48
Similarly in A.G v. Times News papers Ltd , Lord Denning stated that court would not allow
“trial by news papers” or “trial by television” or trial by any medium other than the court of
law.”

Thus trial by media should not be encouraged. However press and media shall have the freedom
to express freely its views and opinion about the issue at hand. In many cases press has played an
active role in bringing an issue to the limelight and have thereby paved way to impart justice.
Thus effort must be placed so as to make sure that freedom of press does not result in trial by
media. It‟s only then that a fair trial can be ensured to an accused under Article 21 of the
Constitution. Also, every person is presumed to be innocent till proved guilty in a court” and no
one “can be allowed to prejudge or prejudice his case by the time it goes to trial.”

46 Rajeev Dhavan, The Hindu, May 17, 2010

47 1996 CriLJ 3944
48 (1973) 1 QB

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Freedom of press and right to privacy/right to know

The problem with freedom of speech is that a free press and a person‟s right to be informed can
occasionally infringe upon another person‟s right to privacy. Public‟s right to know does not
include the right to intimate the private details of one‟s neighbours. Unless the information can
be proven to be of great public interest, there shall be no obligation to bring the matter under
public sensational stories. Where and when line of distinction is to be drawn between the
freedom of press and right to privacy has been an issue of debate. Most journalists defend the
public's right to know contending that detailed, accessible information results in a constituency
who better comprehends the legitimate procedure. Thus again efforts must be placed to ensure
that freedom of press does not encroach into the right to privacy of an individual. Besides, Press
has a duty to keep the public informed of all matters. Right to information of the public must not
be used in any manner so as to interfere with the privacy of an individual. Therefore, all these
rights are to be read in broad sense so that one does not interfere with the other. In other words,
court has to take utmost care to ensure that freedom/ right is guaranteed to the citizens under Part
III of the Constitution are not in conflict with the other.

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 CHAPTER IV

CURRENT SCENARIO OF FREEDOM OF PRESS IN INDIA

About a fortnight ago, on World Press Day, the fourth pillar of a democracy was celebrated. It
was around then that the press freedom rankings were released by Reporters Without Borders
(RWB), where India had slipped two points to 138, just ahead of Pakistan. While this continued
low ranking is worrisome, Chandramauli Kumar Prasad, chairman of the Press Council of India
(PCI) rejected it claiming the rankings “were based on opinion or perception” and not on
49
statistical data .

What the PCI seems oblivious to is that there cannot be any data to establish how free the press
is or how muted the views of journalists are or their freedom to report. And there never can be,
as fear in any case leads most people – including a journalist too – to turn a blind eye to incidents
and facts, a pattern that establishes self-censorship. And „censorship‟ is rarely defined in
„company‟ policy, as it is whispers, chatter and informal messages that establish the dos and
50
don‟ts in many organisations .

The drop in ranking has been linked to the existence of India‟s sedition law that encourages self-
censorship particularly in a period of heightened nationalism. The ghastly murder of senior
journalist Gauri Lankesh and the state of media outlets in Kashmir where some organisations
have reportedly become the “targets of violence by soldiers acting with the central government‟s
tacit consent”, has also been cited as reasons. In addition, RWB highlights the killing of three
journalists in 2018 while they were involved in professional activities.

There is no doubt that the media freedom is under greater threat. Noted lawyer Fali Nariman told
a gathering at the Press Club of India in New Delhi last June: “Freedom after speech – that is
really what freedom of speech is all about”. He emphasised that “you are allowed to speak, speak
as much as you like, but there is a fellow waiting there to nab you and out you in so you can‟t
speak again”! Even the RWB points out that hate against the differing views of journalist is
dangerous for a democracy.

49 https://www.thehindu.com ›
50 Ibid

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Yet the decline in journalism and the state of freedom within the media is not a creation limited
entirely to 2017 or the past four years alone. Even the UPA government in 2012 had sent out
advisories to broadcast media on the criticism of the then prime minister Manmohan Singh by
the opposition after his Independence Day address. But the truth is that the genesis of the
51
situation goes deeper to several years earlier.

Let us rewind a bit – almost three decades ago – when a leading English daily embarked on an ad
campaign stating it cost less to buy their newspaper than a samosa! This instantly turned the
newspaper into a product – a fast moving one – which was as spicy (and oily) as the street snack.

As the media space expanded in the ‟90s till now with over 400 channels and tens of thousands of
newspapers and journals, competing with the price-point of a samosa, the Fourth Estate quickly
reduced to a competitive business, finding a way to sustain itself. That at one time India‟s cable
network was the least expensive in the world and free to air channels even now cost less than a rupee
a month – indicate the perils of a business that should not have been a business. As a result, prime
time news was (and is) littered with advertisements which at times come with the power of
submission to a corporate agenda. And every other daily gave up the sanctity of their mastheads and
front pages to put business in the form of ads, way ahead of news.

After a Supreme Court order in 1995 ruling that airwaves were public property and therefore a
regulator was required to govern the broadcast sector, Parliament and various groups debated a
policy. One of the main aspects of the various proposed notes was ownership of media outlets be
52
it distribution such as cable networks and transponders or media houses – electronic or print .

Examples from the US to UK to Australia were considered particularly when it came to cross
media ownership or the ownership of multiple media companies across print, television, radio,
Internet and so on, by a single entity. Such ownership patterns, as was seen world over, were in
contravention of freedom of speech and plurality as it allowed significant control over opinion
and perception of what is and what is not by a single powerful organisation. The policy never
53
came and the question of ownership was not raised .

51 World Press Freedom Index: India down two ranks to 138, one place above Pakistan". Indian. 27 April
2018.
52 ibid
53 www.wire.com

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An explosion of media took place, turning the Fourth Estate into an industry of competitive
market forces. Price points of media defied actual cost and inflation, lending to greater
competition and the trivialisation of content, particularly news. No wonder headlines changed,
becoming as attractive as ad lines, aimed at garnering eye-balls, chasing audiences defined
54
largely by marketing departments.

This also meant the representation of news was bound to change. Journalists disengaged from the
farmer and other minorities and powerless sections of India, reporting less and less from the
ground. In fact, most recently, a senior journalist with whom I shared a panel, claimed his
channel „also‟ covered rural issues „even if they did not generate TRPs‟ – sounding a lot like a
corporate head speaking on social responsibility claiming that the balance sheet was not the only
focus!

But as the changes occurred in the ‟90s and later, many journalists started to lose their
objectivity, getting as excited by a tax cut as a consumer would, describing budgets as „dreams‟;
expressing elation by the fanciness of a new car entering the market or the rank of India as a
country to do business and the rise in the GDP or the success of Indians who had left the nation.
When foreign exchange reserves touched $100 billion in December 2003, the press screamed it
out prompting the noted economist, Kaushik Basu to write “Never before has dry economic news
been celebrated so widely”.

The hyperbole of emotive adjectives did not die down even in 2007-08 as India came out almost
untouched by the global meltdown. And in time it was a habit to mix views with news and
excitement with facts, where even the press appeared almost starry-eyed by the grandeur of the
Narendra Modi campaign lapping up the size and comparison with the presidential elections of
55
the US.

As all of this happened, not necessarily in an absolute sequence, the realities of running a
business hit several media houses. Some opted for private treaties and others openly allowed
paid news legitimising the same with a pricing menu. Others sold their equity to large industry.
With no policy framework in place, this was waiting to happen.

54 ibid
55 https://rsf.org/en/ranking

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Such incidences, for example, allowed the Reliance Group to own the Network 18. It was called
a „bail out‟ for the then promoter, Raghav Bahl, but it eventually cost the large corporation a
voice and say in public opinion. Coupled with the growing reality of cronyism between industry
and governments, the media was quietly emerging as a critical weapon that the two could share
in a self-serving manner. It is no wonder why corporates have bought into or bought out several
56
media houses.

Surprisingly, the respected media man N. Ram, was quoted in The Hindu last October saying,
“Nobody has figured out a viable business model for quality journalism”. While quality of
journalism has to improve significantly, why should there be a business model if the media is the
Fourth Estate and critical pillar of democracy? Think of it – the government runs without profit
and loss as its prime criteria. It is to govern and provide certain services. The same applies for
the judiciary and the legislature in different measure. The fourth pillar should remain unobliged
and unapologetic if it is to remain free with a purpose of service to the nation.

But back to today‟s realities where press freedom or the lack of is not limited entirely by
ownership or a failing quality of journalism or how the law on defamation is used. Fear is a
critical component that curtails freedom. At one level it is the fear that the State might go after
you for reporting on an issue that damages their image or questions their credibility. At another,
the fear that the management might boot you out because you chose to carry two sides to a story,
or questioned a policy that probably the owner had some interests in. In both situations, self
censorship kills freedom. And if there are a string of deaths of journalists while at work or losing
their job because they disagreed with a management diktat, then the fear runs deep and cages
expression and consequent plurality.

So the matter before us is not the 138 this year or 140 ranking (2014) or 131 ranking (2012). It is
whether the press will get due freedom and if political parties are ready to address it through
their manifestos. It would be a wonder if civil society stands up and makes the matter personal
enough to emote over. And it would be even more powerful if journalists themselves came
together to protect their right to expression as it is their diversity and plurality that will help us
learn more about the length, breadth and width of what our nation is while checking the powers
that be as the Fourth Estate.

56 https://indianexpress.com › India

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 CHAPTER V

CONCLUSION

Current scenario of press and its achievements

As discussed, press is regarded as one of the pillars of democracy as it continues to act as a

watchdog of the three organs of democracy. In the present day, role of press in the administration
of justice has gained significant proportions. The sting operations carried out against public
servants by media houses are gaining popularity. Medias are justified in carrying out deliberate
operations, as this is probably the only way the defaulters can be caught red handed. It helps the
investigating authorities to bring out the truth in unrevealed cases.

Some of the famous cases that would have gone unpunished but for the intervention of media
includes the Jessica Lal case, the Priyadarshini Mattoo case, Nithesh Katara case, Aarushi
murder case and the Bijal joshi rape case. In all these cases the courts have appreciated the
investigative journalism of media.

Press- the need to act in a more responsible manner

Though the press has assumed critical parts for open welfare yet on occasion it has acted
recklessly. For example the electronic media built up the Abhi-Ash wedding in a manner that
other imperative news were dismissed. In Prof. Sabharwal's case, when Prof. Sabharwal was
executed by ABVP activists, there were various news channels & daily paper reporter were
available & they had proof of the homicide however the media acted unreliably & the police
called it an 'Open & Shut Case'.

Likewise, when Mumbai was under fear danger in 26/11 the media acted rather negligently by
telecasting live the long sixty hours Operation Black Tornedo by the security powers to battle the
assault at The Taj Hotel & Nariman House. It included live feed of air dropping NSG
Commandoes on the housetop of Nariman House. Similarly was the IPL issue wherein all sorts
of speculative stories revolved around the relationship between the Minister, Shashi Tharoor, and
Sunanda Pushkar in air and in print. The accent was on denigrating the character and competence
of the businesswoman. This kind of „investigative journalism' has nothing to do with the truth-

26 | P a g e
telling function of the news media. What it does is to prejudice the course of public judgment
and eventually justice. On occasion news channel covers news, for example,

'Bollywood Gossips' & 'Page 3' and so forth which has lessened them to a negligible
'Entertainment Channel'. There are numerous essential issues which ought to be secured by the
media however unfortunately it doesn't.

Freedom of press is central to the survival of democracy. Democracy without the free movement
of the press is a misnomer. However, it has to be remembered that this freedom is not absolute
unlimited and unfettered at all times and in all circumstances as providing unrestricted freedom
freedoms are subjected to reasonable restrictions, the absence of which would lead to disorder
and anarchy. In the words of 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." In an
organised society, the rights of press are to be recognized with its duties and responsibilities
towards the society. The wide power of press freedom shall not be utilized for wrong doings.

The presentation of the news has to be truthful and comprehensive without any distorted
expression. Thus press has a greater responsibility to guard against false news and publications
for the simple reason that its utterance can have greater circulation and impact on the people at
large. Apart from this, there is also essential to strike a proper balance between citizen‟s right to
privacy and public‟s right to information vis-a-vis the role of media so that none of the rights as
guaranteed to the citizens are in conflict with each other. To quote our former Prime Minister,
“Freedom of press is an Article of Faith with us, sanctified by our Constitution, validated by four
decades of freedom and indispensible to our future as a nation.”
 BIBLIOGRAPHY

BOOKS
1. Basu, Dr Durga Das, Case Book on Indian Constitutional Law, 2nd ed. (2007), Kamal
Law House, Kolkata.
2. Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency,
Allahabad.
3. · Gaur, K.D., Textbook on The Indian Penal Code, 4th ed. (2010), Universal
Law Publishing Co., Delhi.
4. Rai, Kailash, the Constitutional Law of India,7th ed. (2008), Central Law Publications,
Allahabad
5. Tiwari, Dr. Mahendra, Freedom of press in India: Constitutional Perspectives, (2006)
WEBSITES
1. www.legalserviceindia.com
2. www.manupatra.com
3. www.indianexpress.com
4. www.thehindu.com
5. www.timesofindia.com
STATUTES REFFERED
1. The Constitution of India
2. The Information Technology Act, 2000
3. Universal Declaration of Human Rights". United Nations

ARTICLES
1. The Freedom of the Press Act", Sveriges Riksdag Archived 2007-09-30 at the
Wayback Machine.
2. World Press Freedom Index: India down two ranks to 138, one place above Pakistan".
Indian. 27 April 2018.
3. Freedom of the Press". PUCL Bulletin. People's Union for Civil Liberties. July 1982.
4. Gardner, Mary A. The Inter American Press Association: Its Fight for Freedom of
the Press, 1926–1960 (University of Texas Press, 2014)
5. Starr, Paul (2004). The Creation of the Media: Political Origins of Modern
Communications. New York: Basic Books. ISBN 0-465-08193-2.

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