This article has been written by Anubhav Garg.
Table of Contents
Introduction
In the world’s largest democracy, the freedom of speech and expression is the most crucial fundamental right availed to the citizens by the constitution. The media is considered as the fourth pillar of democracy and it plays a vital role in a country’s social, political, economical and international affairs. Thus, it goes without saying that free press is a sine qua non for a democracy to survive and thrive and preserve the ethos of good and transparent governance.
In the past, India has witnessed the rise of political parties (Modi government), falling of the governments (Rajiv Gandhi’s government), crashing of the economy(2008 crisis) and stock markets getting skyrocketed (bullish Indian stock market after US-China Trade war), all based on the information broadcasted regarding them by the media. A country’s international reputation and the global impression are largely influenced by the kind of news which prevails about that particular country in the international press.
What is Freedom of Press?
Freedom of the press refers to the minimal interference of the state in the operation of press on any form of communication including, print (newspapers, magazines, journals, reports); audio (radios, podcasts); video (news channels, OTT platforms like YouTube) and over other electronic mediums like news apps, social media feeds, etc.
The liberty of the press in the words of Lord Mansfield is, “consists of printing without any license subject to the consequences of law”. Therefore, we can conclude that freedom of the press refers to having the freedom to express what one pleases without any prior permission from law.
Why Freedom of the Press?
As per Indian Newspapers v Union of India, the objective of the press is to supplement the public interest by printing the facts and opinions without which the citizens of the country cannot make well informed rational judgments. Freedom of the press is in the crux of social and political inter-course. It is the paramount duty of the judiciary to prop the freedom of the press and refute all laws and executive actions that interfere with it as opposed to the constitutional provisions.
Press is a medium of availing knowledge and spreading the vital information of events, developments, incidents of national interest to the whole nation and thus free and fair operation of the press makes the backbone of civil society which is capable of critical and independent thinking and forms its opinion about the country and the government after scrutinizing the facts of the situation wisely.
Article 19 and Freedom of Press
Freedom of the press is implicit under Article 19(1)(a) of the Indian Constitution, which provides for the freedom of speech and expression under Part III (fundamental rights). It does not explicitly provide the term “freedom of the press” anywhere but it becomes quite clear from this Constituent assembly debate when Dr Bhim Rao Ambedkar replies to a question of “Article 19 not including ‘freedom of the press’” saying that the press is just another method of quoting an individual citizen and when anyone chooses to write in a newspaper, they are merely exercising their right of expression and thus, there is absolutely no need to separately mentions the freedom of the press.
Scope of Freedom of Press under Article 19(1)(a)
Freedom to spread information
Without this liberty, freedom of the press is nugatory. Though this right is also implicit in the freedom of expression, Romesh Thapar v State of Madras makes it explicit. The mainline of difference between the freedom of the press and freedom of expression for an individual is that an individual can’t communicate to masses on his own, but a press can by means of its publications on various mediums like print, broadcasts, electronic, etc. Thus, freedom to spread information is an intrinsic part of freedom of the press.
Freedom to criticize
The press, just like individuals have the liberty to criticize the government, its officials, its policies, its actions, its laws, its statements, etc. However, the press cannot take abuse this right and cannot provoke the public against the government or cannot abet riots, rebels, or mutiny or insecurity of the state or the government.
Freedom to receive the information
Again, the heart of the liberty to press. If the press is not equipped with the information, it cannot empower the public with the knowledge and thus, the right of expression will become futile because there will be no access to information on whose basis anything can be expressed.
Freedom to conduct interview
This right is necessary to bring in first hand knowledge from the experts on the particulars subjects and to enlighten the society at large. Though this right is not absolute, there are three caveats to it as follow:
- Interview will only take place on the consent of the interviewee;
- Interview shall stop when the interviewee wants to it to be;
- Interviewer can’t force interviewee to answer any question against his/her will.
Freedom to report court proceedings
In the words of Jeremy Bentham, “the soul of justice is publicity”. In Sahara India Real Estate Corpn ltd v SEBI, SC held that it is the right of the media to report the judicial proceedings. In Saroj Iyer v Maharashtra Medical (Council) of Indian Medicine, SC held that the right to print faithful reports of the legal proceedings witnessed is available even if it is against quasi-judicial tribunals.
Freedom to attend and report legislative proceedings
Article 361 of the Constitution equips us with the right of publishing a kosher report of the parliamentary proceedings. The only limitation of this freedom is that there should be no mala fide intention behind such publications. When the right of reporting of legislative proceedings which is implicitly envisaged in the right of expression (A.19) is in discord with parliamentary privileges (A.105 and A. 194), the right of speech and expression shall overshadow the parliamentary privileges. Today it is mandatory to do live telecast of the parliamentary proceedings.
Freedom to act as an advertising platform
We know that the major income of most of the presses comes from the advertisement, whether it is a radio, or news channel, or mobile application, or newspaper. It was after Tata Press v Mahanagar Telephone Nigam that SC incorporated the right to advertisement as a part of the right to freedom of expression.
Freedom to broadcast
In the modern age of technology, power to broadcast is essential as it is one of the major channels to spread information. This right not only includes broadcasting on news channels, radios, but also on the internet like websites, blogs, mobile applications. We have witnessed some of the most reliable journalism on these platforms like Alt News, ThePrint, TheWire, Quint, etc.
Reasonable Limitations of Press’ Freedom
We know that unrestricted freedom, that is, liberty without any reasonable restrictions on it always hampers the very purpose of granting that freedom in the first place, that is to empower the individuals as it backfires and makes the rights of individual collapse with one another. As freedom of press derives its powers from Article 19(1)(a), it is also subject to the reasonable limitations imposed on A.19(1)(a) under A19(2) which are explained as follow:
Sovereignty and integrity of the state
It was inserted by an amendment to control the extreme reactions of the people, who were protesting for separate entities of the different regions of India. Any form of speech or any expression which hampers the sovereignty or integrity of the state would be covered under this restriction. The right of freedom to speech and expression can’t be allowed to be used as a weapon against the sovereignty or integrity of the state.
At this juncture, it is essential to take cognisance of the fact that ‘sedition’ is no ground to impose reasonable restrictions as envisaged under Article 19(2) of the Constitution.
Security of the state
The freedom of expression cannot be exercised in a way so that it becomes a threat to the security of the state in any manner. Any communication which incites the people to cause social unrest, rebels, violence, riots, etc against the state and its subjects would be covered under this restriction.
In State of Bihar v Shailabala Devi, SC held that the speeches made by any person (citizen or non-citizen) which encourage the people to commit offences like dacoity, murder, robbery, etc is without a doubt a threat to the security of the state. Hence such a speech will be considered as a prejudice towards the sovereignty or integrity of the state, and the order to stop or curtail such communication is covered under reasonable restrictions of A.19(2).
Public Order
This term was inserted by the Constitutional (First Amendment) Act, 1951. This clause was added to curtail the effects of Romesh Thappar v State of Madras where the SC had held that the right to circulation is an intrinsic organ of Right to freedom of expression.
The term “public order” has a broad meaning and covers a multitude of actions which may endanger the security of the state. In Madhu Limaye v Sub Divisional Magistrate Monghyr SC held that the term “public order” can be construed as “no insurrections or riots or disturbance to public peace.”
In Ramji Lal Modi v State of UP the constitutionality of the Section 295A of the Indian Penal Code (IPC) was being questioned. The argument advanced was that the mentioned section infringes the Right to Freedom of Speech and Expression guaranteed under Part III in Article 19(1)(a) under the Constitution. The petitioner, who was the printer, publisher and the editor was held guilty of offences under Section 295A of the IPC. Further, it was contended that this section has no protection under the reasonable restrictions of A.19(2) of the constitution. The SC dismissed this argument and held that if an individual by exercising his/her right the freedom of expression causes public disorder, then he or she can be prosecuted under the mentioned section which comes within the purview of reasonable restrictions.
Decency or morality
For preserving the decency or morality in the country, the state has the authority to limit the freedom of speech and expression of an individual. Further elaboration of this ground is reflected in Sections 292 to 294 of the IPC. The mentioned sections list downs some acts as crime such as selling obscene publications to young individuals, making indecent gestures in Public places etc. In Ranjit Udeshi v State of Maharashtra SC held that the S. 292 of IPC is constitutional as it prohibits obscenity in public places and promulgates public decency and morality. It was further supplemented in Chandrakant Kalyandas Kakodkar v State of Maharashtra by SC that while tackling the question of decency and morality, the court has to consider the proposition as to whether or not the indecent or immoral acts were sufficient to pollute the mind of the young individuals or is there a possibility that their minds would become depraved.
Contempt of Court
There is no doubt that freedom of speech and expression is very crucial for societal development, but on the other hand, providing and maintaining justice and equity is also equally substantial. Though, the freedom of speech and expression reckons but it can’t be wielded to cancel out courts’ actions of justice.
The SC under Article 129 & the HCs under Article 215 of the constitution is empowered to take punitive actions for contempt of court. It was further held in C.K. Daphtary v O.P. Gupta it was held that the S.228 of IPC and A.129 of the constitution are valid and are covered within the purview of reasonable restrictions enshrined in Article 19(2) of the constitution. Thus,we can infer from the above discussion that the freedom of speech and expression is prone to Articles 19(2), 129, and 215 of the constitution.
Defamation
Article 19(1)(a) in no manner gives a license to cause damage to the reputation of a person in the name of freedom of speech and expression. Causing damage to an individual’s reputation is considered as defamation and is a stringent limitation to the right of freedom of speech and expression.
No one is allowed to expose a person to hate, ridicule or contempt by means of any expression, signs or gestures. Defamation is considered as a very stringent act and therefore it is prohibited by the Civil Laws of Torts.Also, it is an offence under S. 499 of the IPC. As something is enshrined as wrong under two statutes, it is obvious that it has a defence under reasonable restrictions of Article 19(2) of the Constitution.
Friendly relations with Foreign states.
Just like with the term “public order”, this ground was also inserted in Article 19(2) of the Constitution via Constitution (First Amendment) Act, 1951. This main objective of incorporating this restriction was to counter the antagonistic and mala fide propaganda against any foreign country which may have friendly connections with the Republic of India.
Such activities can jeopardize the government’s efforts to promulgate and maintain friendly relations with foreign nations and bring lucrative results out of those results for India. In Jagan Nath v Union of India, SC held that all commonwealth countries are foreign countries for the purpose of Article 19 (2). However, another fact to take cognisance of is that, members of the commonwealth countries including Pakistan aren’t the members of foreign states for the purpose of the Indian constitution.
Incitement to an offence
As per the criminal jurisprudence, the act of incitement or abetment to an offence is a distinct and independent offence per se. Exercising the freedom of speech and expression to incite an offence would be considered as a threat to the public order.
Just like the terms “public order” and “friendly relations with foreign states”, this ground of reasonable restriction was incorporated in the constitution via the Constitution (First Amendment) Act, 1951. In State of Bihar v Shailabala Devi, it was held by SC that any communication which leads to incitement of any criminal act can be restricted and any order for such ban will fall within the purview of reasonable restrictions envisaged in Article 19(2) of constitution.
The above mentioned seven grounds of reasonable restrictions act as a line in the sand for the demarcation of the right to freedom of speech and expression which also includes the right to freedom of press. So, one can infer that the right to free press prevails within the boundaries of reasonable restrictions enshrined in Article 19(2) of the constitution.
Conclusion
Currently, India’s rank in the World Press Freedom Index by Reporters Without Borders is 140th amongst 180 countries. This rank has taken some serious declines in the last decade from 133 to 136 in 2017; 136 to 138 in 2018; 138 to 140 in 2019. This dip is due to the beating, prosecution and even deaths of journalists on the line of work. We often see videos of journalists getting lynched and being publicly beaten for trying to expose politicians or government officials. This shows some serious concern pertaining to the freedom given to press in the country with the world’s biggest Constitution and bureaucratic setup.
Press is supposed to be the voice of the public to the government, but in modern times, a contrast to this can be observed, where some of the major mainstream media houses are marketing the politicals parties while criticizing the oppositions parties and not discussing the relevant issues like public welfare, corruption, analysis of government schemes, etc. Though it is also true that forums like WhatsApp, YouTube, and Facebook which are totally independent are have become prone to fake news leading to mob lynching, fear-mongering, hate speech, propaganda spreading and indecency promoting, which highlights the need of some reasonable restrictions of the press.
Though, without a shred of doubt, for preserving democracy and not promoting informed citizenry in the nation, we have to give reasonable freedom to the press. The present government has tried to curb this freedom by amending RTI Act, Whistleblower Act, and proposing the Sedition Act in the parliament which in the opinion of the author goes against the basic tenets of the constitution of tearing apart the very fabric of democracy.
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