FREEDOM of Press & FREEDOM of Speech: Views of a law student
Freedom of Press in Indian Constitution
- Freedom of Speech and Expression under Article 19(1)(a)
Û Various aspects of the freedom
- Restrictions / Limitation
Û Media trial
Û Doctrine of postponement
- Concluding observation
Webster’s New World Dictionary has defined the term ‘Press’. It means – (a) clipped from printing press, (b) a printing or publishing establishment,(c) the art, business or practice of printing, (d) newspapers, magazines, news services etc., in general, or the persons who writes them, journalism or journalists, (e) publicity, criticism, etc., in newspapers, magazines etc.
In simple terms, a press means all plant machinery, implements and other materials, by which means, printing is done. It also includes those who engage in the production of the foregoing articles, such as printer, editor, publisher, journalist, author and the business aspect of a printing establishment, a newspaper, in particular, e.g., as an employer; as an advertising agency or a publisher of books, for consideration.
Freedom means absence of control, interference, restriction, boundation. Freedom of expression here means the right to print and publish without any interference from the state or any authority established by it. In India, freedom of speech and expression is guaranteed by Article 19(1)(a) of the Constitution; and it has been held by the Supreme Court in Express Newspapers v. Union Of India[i] that freedom of ‘Press’ is included in that wider guarantee. It is unnecessary to plead for the freedom of the press in the country.
American judiciary while dealing with the need of freedom of press and its role in case of Grosjean v. American Press co.[ii] observed : “ the newspapers, magazines and other journals of the country… have shed and continue to shed more light on the public and business affairs of the nation than any other instrumentality of publicity….. A free press stands as one of the great interpreters between the Government and the people. To allow it to be fettered is to fetter ourselves.”
Democracy cannot function unless the people are well informed and free to participate in choice of alternative solutions of the problem that arise. Freedom of Press, in short, foreclose the state from assuming guardianship of the public mind. “Authority is to be controlled by public opinion, not public opinion by authority.”
In Bennett Coleman v. Union Of India[iii] the Court has rightly pointed out the importance of press and said that ‘public criticism is essential for the working of democracy.’
It can be said that like other necessities of developed human society freedom of speech and expression i.e. Press has also been emerged as an important one.
2.Freedom of speech and expression under Article 19(1)(a):
India has a written Constitution which guarantees certain fundamental rights specified in Part III of the Constitution. Article 19(1)(a) refers to right to freedom of speech and expression, subject to some exceptions under Article 19(2). Article 19(1)(a) says – All citizens shall have the right – to freedom of speech and expression;
Unlike the Constitution of United States Of America, our Constitution does not specifically mention the freedom of press anywhere, but our Supreme Court has held that there was no need to mention the freedom of press separately, because it is already included in the guarantee of ‘freedom of speech and expression,’[iv] which comprehends not only the liberty to propagate one’s views but also the right to print matters which have either been borrowed from someone else or are printed under the liberty of publication and circulation, and the right to answer the criticism leveled against such views.[v]
The guarantee under Article 19(1)(a) is confined only to ‘citizens’, a non-citizen, running a press, is not entitled to the benefit of the liberty of press. In this aspect, the position of a press run by a foreigner or of a foreign journalist in India, may be under greater control than before independence, when there was no constitutional provision to rely upon[vi], in favour of either a citizen or non-citizen. It would follow from this that not only an alien, but also a company, even though incorporated in India, would not be entitled to complain of any invasion of freedom of expression or of the press, because it has been held that ‘citizenship’ under our Constitution is confined to natural persons only.[vii]
Unlike the legislation, the apex Court has provided some relief and held that though a company, not being a ‘citizen’, may not be entitled to a fundamental right under Article 19, and may not be entitled to apply for enforcement of such right under Article 32 or 226 of the Constitution, the rights of its shareholders are necessarily affected where the rights of the company are affected. Hence, where a newspaper company is incorporated in India, its Indian shareholders, who are the citizens of India, may challenge the constitutionality of a law or Government order which infringes the freedom of such press or newspaper and such a proceeding would not be thrown out merely because the company has been as a co-petitioner.[viii]
Aspects of the Freedom :
Article 19(1)(a) has very wide ambit. Not only the freedom of speech and expression but it also include the right to receive information, freedom of newspaper, advertisement, television, cinema, telecasting and all other aspects of media.
Right to Receive Information:
The expression freedom of speech and expression in Article 19(1)(a) has been held to include the right to adequate information and disseminate the same, and includes the right to communicate it through any available media whether print or electronic or audio-visual, such as advertisement, movie, article, speech etc. This freedom includes the freedom to communicate one’s opinions without interference to as large a population in the country, as well as abroad, as is possible to reach.
In Dinesh Trivedi, M.P. v. Union Of India[ix] , the Court said : “ in modern constitutional democracies, it is automatic that citizens have a right to know about the affairs of the government, which having been elected by them, seek to formulate sound policies of governance aimed at their welfare” observing “democracy expects openness and openness is concomitant of a free society and sunlight is a best disinfectant.”
“Securing information on the basic details concerning the candidate contesting for elections to Parliament or the State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a),”[x] Supreme Court said while discussing about the scope of freedom of speech and expression.
In a recent case[xi] Supreme Court has said that right to know is a basic right of the citizens of a free country and Article 19(1)(a) protects this right. The right to receive information, which is basically founded on the right to know, is an intrinsic part of this freedom under Article 19(1)(a) .
The freedom of receiving and communicating ideas without interference is an important aspect of this freedom, without adequate information, a person cannot form an informed opinion and as we all know about the duty of press i.e. to communicate the best possible contents, it is protected under this Article.
Newspapers are the inseparable part of freedom of speech and expression. In Sakal Newspapers (P) Ltd. V. Union Of India[xii] 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 challenged on the ground that it infringed the liberty of the press implicit in Article 19(1)(a). The court accepted the plea and the order was stuck down and held to be inoperative. It was held that the only restrictions which could be imparted on the press were those which Clause (2) 0f Article permits and no others. This judgment of the apex court clearly made the print media as a part of Article 19(1)(a).
In Bennett Coleman & co. v. Union of India[xiii] the court repeated that freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views. The press has the right to free propagate and free circulate without any previous restraint. If a law were to single out the press for laying down prohibitive burdens on it that would restrict the circulation, penalize its freedom of choice as to personnel, prevent newspapers from being started and compel the press to seek government aid, it would violate Article 19(1)(a) and fall outside the exception in Article 19(2). “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.”[xiv]
The Supreme Court has emphasized, television plays a very important role in modern life. Many people obtain the bulk of their information on matters of contemporary interest from broadcasting medium. The combination of picture & voice makes it an irresistibility attractive medium of presentation. It exercises tremendous influence over millions of people. Freedom of speech and expression includes the right to receive information and ideas as well as freedom to impart them.[xv]
Films : Censorship
As stated earlier in the importance of television, what some audio-visual content can do to human society, films has also played a crucial role as a part freedom of speech and expression.In K.A. Abbas v. Union Of India[xvi] the Supreme Court has upheld the censorship of films under Article 19(1)(a) on the ground that films have to be treated separately from other products of art. A film can, therefore, be censored on the grounds mentioned in Article 19(2).
The court has justified pre-censorship of a file because it caters for mass audience, it has unique capacity to disturb and arouse feelings and has as much potential for evil as it has for good. A film cannot therefore be allowed to function in a free market place just as newspapers, or magazines do.[xvii]
It has been observed that freedom of expression cannot be suppressed on account of threat of demonstration or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. The state cannot plead its inability to handle the hostile audience problem. Freedom of speech and expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people.
The protection of advertisement was for the first time discussed in the case of Hamdard Dawakhana v. Union Of India[xviii]. The Court stated that an advertisement, no doubt, is a form of speech, but its true character is to be determined by the object which it seeks to promote. It may amout to an expression of ideas and propagation of human thought and, thus, would fall within the scope of Article 19(1)(a). But a commercial advertisement having an element of trade and commerce and promoting business has an element of trade and commerce, and it no longer falls within the concept of freedom of speech for its objects is not to promote any ideas – social, political, or economic or to further literature or human thought. An advertisement propagating any ideas and, as such, could not claim protection under Article 19(1)(a).
But the Supreme Court has modified its earlier in later cases. In Indian Express Newspapers[xix], the Court has observed ; “we are of the view that all commercial advertisement cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by the businessmen.” And in this way the advertisements got its place in freedom of speech and expression along with the press.
3.Restriction / Limitation :
While it is necessary to maintain and preserve the freedom in a democracy , so also it is necessary to place some curbs on this freedom for the maintenance of social order. No freedom can be absolute or completely unrestricted . Accordingly Article 19(2) puts some reasonable restrictions upon the right to freedom of speech and expression discussed under Article 19(1)(a) ‘in the interest of’ the security of the state, friendly relations with foreign states, public order, decency, morality, sovereignty and integrity of India, or in relation to contempt of court, defamation or incitement to an offence.
Exercise of legislative as well as executive power in this respect by the state can be subjected to judicial review, within a limited ambit. The burden of proving the restrictions is on the authority to justify, which it tries to impose.
Decency or morality:
Decency or morality is one of the major ground on which freedom of speech and expression may be restricted. The scope of indecency or obscenity under the existing law is illustrated in Section 292 to 296, IPC. These Sections prohibit the sale or distribution or exhibition of obscene matters or of doing of obscene acts or singing of obscene songs or uttering of obscene words, etc. in public places.Books, pamphlets, writings, paintings used for bona fide religious purposes are exception to Section 292. Although the IPC prohibits the sale, etc of obscene books & articles, it does not lay down the test of obscenity. In Ranjit D. Udeshi v. State Of Maharashtra[xx] while dealing with the question of obscenity applied the Hickline Test as follows; “ whether the tendency of the matter charged ss obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a public-action of this sort may fall” and the Court held the book ‘Lady Chatterley’s Lover’ obscene and upheld the conviction of the appellant in whose possession the book was found.
As we are discussing here the rights of press in our Constitution, it is equally important to know some duties of imposed on it. Interference with administration of justice is not permissible freedom nor an unreasonable restriction. In a care relating to suicide by wife due to her harassment for dowry, an application for grant of anticipatory bail was rejected by court, an article appeared in a magazine based on an interview of the case which could all be materials that may be used in the forthcoming trial. The Supreme Court took the view that such articles appearing in media would certainly interfere with the administration of justice and deprecated such practice and cautioned the sible for said article against indulging in such trial by media with the issue was sub-judice.[xxi]
Again the court has said that before placing criticism of a judgment in public, all concerned in its publication have to see whether any such criticism has crossed limits of fair criticism. Right to freedom of media has to be exercised responsibly and internal mechanism should be devised to prevent publication that would bring judiciary into dispute and interfere with he administration of justice, especially, since judiciary has no way of replying thereto by very nature of its office. The judgment of courts are public document and can be commented upon, analyzed and criticized, but it has to be in a dignified manner without attributing motives.[xxii]
Doctrine of Postponement:
Media overreach is a daily affair these days, especially in under trial cases. Accused persons standing trial or who are likely to stand trial in courts, are being treated and tossed around like villain much prior to hearing of their cases. What the media seems to be unmindful of is the fact that excessive prejudicial publicity leading to usurpation with administration of justice which is sought to be protected under Article 19(2), it also prejudices or interferes a particular legal proceeding. “A trial by press, electronic media or public agitation is the very antithesis of rule of law.”
In Sahara India case[xxiii] the Court laid down a constitutional principle under which aggrieved parties can seek postponement of publication of court hearing. The court’s view was that it was a preventive measure and not a prohibitive or punitive measure. It further said that temporary ban on publication of court publication of court proceeding is necessary to maintain balance between freedom of speech and expression and fair trial for proper administration of justice. The issue of breach of confidentiality came up when certain documents regarding the dispute between Sahara & SEBI were leaked to the media.
Press Council : the Protector
The Press Council was first established in 1965 but was abolished in 1976 during the emergency. It was re-established by the Press Council Act,1978. The jurisdiction of the council to protect the freedom of the press is very broad. The council can take not of violation of the right to liberty of the press from any agency – be that the State, state functionary, public authority, companies, individual or any person , real or fictional.
Concluding Observation :
It can be concluded that the freedom of press is nowhere mentioned in the Indian Constitution as the Supreme Court has reiterated that though freedom of press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth estate. The democratic credentials of the state are judged by the extent of freedom the press enjoys in the state.[xxiv]
Freedom of expression enables one to express one’s own voices as well as those of others. But freedom of the press must be subject to those restrictions which apply to the freedom of speech & expression. The status of freedom of press is the same as that of an ordinary citizen. The press cannot, thus, claim any immunity from taxation, is subject to the same laws regulating industrial relation, and press employees are subject to same laws regulating industrial relations.
[i] AIR 1958 SC 578(614)
[ii] (1935) 297 US 233
[iii] AIR 1973 SC 106
[iv] Express Newspapers v. Union Of India,(1959) SCR 12
[v] L.I.C. v. Manubhai D. Shah, Prof., AIR 1993 SC 171
[vi]Sharma v. Srikrishna, AIR 1959 SC 395
[vii] Tata Engineering co. v. Union Of India, AIR 1965 SC 40
[viii] Bennett Coleman v. Union Of India, AIR 1973 SC 106
[ix] (1997)4 SCC306 : (1997)1 SCJ 697
[x] PUCL v. Union Of India, (2003)4 SCC 399 : AIR 2003 SC 2363
[xi] CIC v. State Of Manipur AIR 2012 SC 864(867) ; Ram Jethmalani v. Union Of India, (2012)8 SCC 1
[xii] AIR 1962 SC 305 : (1962)3 SCR 842
[xiii] AIR 1973 SC 106 : (1972)2 SCC 788
[xiv] Ibid, at 130
[xv] Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal AIR 1995 SC 1236
[xvi] AIR 1971 SC 481 : (1970)2 SCC 780
[xvii] Rangarajan v. P. Jagjivan Ram, (1989)2 SCC 574
[xviii] AIR 1960 SC 554
[xix] AIR 1986 SC 515
[xx] AIR 1965 SC 881 : 1965(1) SCR 65
[xxi] M.P. Lohia v. State of West Bengal, (2005)2 SCC 686
[xxii] Rajendra Sail v. M.P. High Court Bar Association, (2005)6 SCC 109
[xxiii] Sahara India Real Estate & Others v. SEBI (2012)10 SCC 603
[xxiv] Printers(Mysore) Ltd. v. Assistant Commercial Tax Officer, (1994)2 SCC 434