Law and You > Constitutional Law > Freedom of Press Under Indian Constitution
Through the ages, man has expressed his ideas through several media like symbols, signals, speech, script and print, and now computer language. Man’s greatest invention is language. The invention of the script has helped mankind to preserve human thought and learning. It has helped society to conquer both space and time. A language is in many ways responsible for creating social realities. Words are employed to create understandings of social phenomena which can differ and therefore shape thoughts and actions in a variety of ways. In this article, we shall discuss freedom of press under Indian Constitution in the light of article 19(1)(a).
Freedom of speech and of the press lays at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the popular government is possible. Since information and ideas are so important for the growth and survival of a free and democratic society, such a goal cannot be achieved unless every citizen has a fundamental right to give expression to his ideas and opinions. This came to be known as the right to free speech and expression. With the advent of printing technology, freedom of the press was included in the freedom of expression.
Freedom of expression has been humanity’s yearning in times ancient and modern. Similarly, censorship or reasonable restrictions are also ancient and universal phenomenon. The founders of Indian constitutions are aware about co-existence of conflicting Right and Restrictions and enacted Article 19 with clear mention of Reasonable restrictions. This has further evolved with progressive judgements of Indian Judicial System.
The Article 19 (1) of Indian constitution provides fundamental rights. Article 19 (1) of the Indian Constitution says that All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) to practice any profession, or to carry on any occupation, trade or business
Article 19(1) (a) of the Constitution of India states that, all citizens shall have the right to freedom of speech and expression. The Right of freedom of Speech and Expression implies that every citizen has the rights to express his views, opinions, belief, and convictions freely by mouth, writing, printing or through any other methods. The exercise of this right is, however, subject to “reasonable restrictions” for certain purposes being imposed under Article 19(2) of the Constitution of India.
Restrictions on Right of Free Speech and Expression:
Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under following heads:
- security of the State,
- friendly relations with foreign States
- public order,
- decency and morality,
- contempt of court,
- defamation,
- incitement to an offence, and
- sovereignty and integrity of India.
Judicial creativity, judicial wisdom and judicial craftsmanship have widened the scope of freedom of speech & expression by including in it the following aspects
- Freedom of Press,
- Freedom of Commercial Speech
- Right to Broadcast
- Right to Information
- Right to Criticize
- Right to expression beyond national boundaries
Freedom of Press:
Freedom of press or media refers to the rights given by the Constitution of India under the freedom and expression of speech in Article 19(1)(a). It encourages independent journalism and promotes democracy by letting the people voice their opinions for or against the government’s actions. The press have a variety of rights including the right to publish, right to circulate, right to receive information, right to advertise, right to dissent, etc.
In Anuradha Bhasin v. Union of India, (2020) SCC Online SC 25 case, the Court observed that responsible governments are required to respect the freedom of the press at all times…………journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.
Defamation and Free Press:
Saying or writing something which is harmful to a reputation of a person, is called defamation, and is a crime under Section 499 of the Indian Penal Code, 1860. It’s against the law to intentionally harm someone’s reputation, cause them to be hated or disgraced through text, image, cartoons, caricatures or effigies. If the critique was made in good faith or related to a matter of serious public interest, then it will not be an act of defamation.
In Jawaharlal Darda v. Manoharro Ganpatrao Kapiskar, 26 March, 1998 case, a complaint was filed under Sections 499, 500, 501 and 502 of the Indian Penal Code and it was alleged that the Chief Editor of the newspaper Lokmat is to be charged for defamation for the publication of news of the Maharashtra legislative proceedings. The news contained details that when a question regarding misappropriation of government funds was asked by the minister, he admitted it by saying that the enquiry concluded that there was a misappropriation. Further, he revealed 5 names, including that of the complainant, and stated that they were involved in misappropriation. The Supreme Court highlighted that the reporting by the newspaper was true and accurate and was in good faith. It was also stated that, “If the accused bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was a report in respect of public conduct of public servants who were entrusted with public funds intended to be used for public good. Thus. the facts and circumstances of the case disclose that the news items were published for public good.
Freedom of Speech and Expression:
The freedom of speech and expression involves the right to express by word of mouth, writing, printing, pictures or any other manner. It includes the freedom of communication and the right to propagate or publish one’s view. The only restrictions available under the Constitution which can be imposed on this right are those given under Article 19(2), which constitute reasonable restrictions, on grounds of — the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, or in relation to contempt of court, defamation or incitement to an offence.
In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, AIR 1986 SC 515 case, Venkataramiah J. of the Supreme Court of India stated: “In today’s free world, freedom of the press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible on 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.”
In Brij Bhushan v. State of Delhi, AIR 1950 SC 129 case, where the validity of order imposing pre-censorship on an English Weekly of Delhi, which directed the editor and publisher of a newspaper to submit for scrutiny, in duplicate, before the publication, all communal matters, all the matters and news and views about Pakistan, including photographs, and cartoons, on the ground that it was a restriction on the liberty of the press, was struck down by court.
Right to Publish and Circulate:
The right to free speech and expression to the press includes the right not only to publish but also to circulate information and opinions.
In Romesh Thappar v. State of Madras, AIR 1950 SC 124 case, where the petitioner was a well-known communist of his time and was very sceptical of the policies of the then Prime Minister Pt. Jawaharlal Nehru, especially his foreign policy. He published a few articles in his weekly English magazine called Crossroads that expressed his scepticism in this regard. In the month of March 1950, the Government of Madras by virtue of an order issued pursuant to Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 imposed a ban on the entry and circulation of the magazine in these areas for the purpose of ensuring ‘public safety’ or preserving ‘public order. The Court highlighted the importance of media being the fundamental basis of all democratic organizations and held that the freedom of speech and expression includes freedom of propagation of ideas that can only be ensured by circulation.
In Bennet Coleman and Co. v Union of India, AIR 1973 SC 106 case, where. in the 1960s, India faced a shortage of newsprint. To meet this demand, newsprint was imported from foreign countries. The Newsprint Control Order, 1962 was made under the Essential Commodities Act, 1955 and its import was regulated by the Import Control Order, 1955. A restriction on the number pages were put. The Supreme Court held that newspapers should be left to determine their pages and their circulation.
Right to Receive Information:
Any citizen, including the press can make an application for information and can access information such as details of project budgets, implementation status, the status of any complaint/application they have made to any government body. Such an application is commonly referred to as an RTI or RTI application. The Supreme Court through various cases has discussed the right to information in various contexts including the right of voters to know the antecedents of electoral candidates, the right of sports lovers to watch cricket, the right of citizens to get vital information about life-saving drugs etc.
In Central Board Of Secondary Education s. Aditya Bandopadhyay, 9 August, 2011 case, where the respondent took the Secondary School Examination, 2008, which was administered by CBSE. He was dissatisfied with his grades when he received his marksheet. He believed this after doing well in the exams, but his answer papers were not appropriately evaluated, resulting in poor grades, contradicting his beliefs. As a result, he requested that the answer books be inspected and re-evaluated. However, CBSE denied his request, arguing that the requested material is exempt under Section 8 (1) (e) of the RTI Act since it has a fiduciary relationship with the evaluators and must preserve secrecy in the evaluation technique. However, the student requested that CBSE allow him to produce the answer booklets and re-evaluate. The final judgement in the case was in favour of the student when it reached the Supreme Court. “In the context of all exams, provisions of the RTI Act continue to prevail above provisions of the examining organisations’ bye-laws,” the Justices wrote. As a result, unless and until the examining body can show that the answer books fall within the exempted category of material stated in clause (e) of Section 8(1) of the RTI Act, an examinee will be permitted to see them.
Right to conduct interviews:
The right to conduct interviews is a limited right of the press and can only be exercised if there is willing consent from the person being interviewed. There are several cases of the Supreme Court where the right of the press to interview convicts or undertrials has been examined.
In Prabha Dutt v. Union of India, AIR 1982 SC 6 case, where the petitioner, Smt. Prabha Dutt Chief reported of Hindustan Times filed a petition under Article 32 of the Indian Constitution asking for a writ directing the respondent, the superintendent of Tihar Jail, to allow her to interview the two convicts named Billa and Ranga who are charged with death sentence for an offence under Section 302 of the Indian Penal Code and the petitions filled by them to the President of India for communication of the sentence are reported to have been rejected by the President recently. The Supreme Court in this case directed the Superintendent of the Tihar Jail to allow the representatives of a few newspapers to interview two death sentence convicts under Article 19(1)(a) as “the right under Article 19(1)(a) is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information”. Thus, the Court held that the press does not have an absolute or unrestricted right to information and an interview may be conducted only if the prisoners give their consent.
In State v Charulata Joshi, 63 (1996) DLT 90 case the Supreme Court granted permission to interview Babloo Srivastava in Tihar Jail but stated that the undertrial prisoner can only be interviewed or photographed if he expressed his willingness to be interviewed.
Sedition and the Right to Dissent:
Freedom of speech and expression under Article19(1)(a) of the press also covers the right to criticize the government as well as the right to hold unpopular or unconventional views. The law commonly used to curtail such criticism is known as the sedition law under Section 124-A of the Indian Penal Code, 1860. Under Section 124A of the Indian Penal Code, when anyone tries to bring hatred or contempt or excites disaffection towards the government through speech, words or gestures, they have committed an act of sedition. The punishment for sedition is three years jail time which can extend to jail for life, along with the fine.
Even though FIRs are commonly filed using the sedition law against the press, Courts have held that commenting in strong terms upon the measures or acts of Government, or its agencies is not the same as disloyalty towards the Government. As long as the words used by a person do not lead to people feeling enmity and disloyalty towards the Government and public disorder or use of violence, it is not an act of sedition.
In Vinod Dua v. Union of India case, where Mr Vinod Dua, in his YouTube programme, allegedly made unsubstantiated and odd charges against the Prime Minister Narendra Modi during start of lockdown due to Corona. Mr Vinod Dua, according to the F.I.R., generated terror among the population by making such false allegations. The FIR also stated that the programme would merely stir up public dissatisfaction, resulting in panic and individuals disobeying the lockdown to come out and stockpile supplies, which is completely unneeded. The rumours were distributed to induce fear or anxiety in the general public or any portion of the general public, to induce anybody to commit an offence against the state or public calm. The Supreme Court observed that the activities that are intended or have the potential to cause disruption or disturbance of public peace by resorting to violence, are to be criminalised. Based on the facts of this case, the Court concluded that the words used by Vinod Dua may best be described as expressions of disapproval of measures taken by the government and its officials for the current crisis to be resolved swiftly and efficiently. They were not created to incite others or demonstrate a proclivity for causing trouble or disturbing public peace through the use of violence.
Right to Report Court Proceedings:
Journalists have the right to attend proceedings in court and the right to publish a faithful report of the proceedings witnessed and heard in Court. Courts also have the power to restrict the publicity of proceedings in the interest of justice.
In Naresh Shridhar v State of Maharashtra, AIR 1967 SC 1 case, where one of the defence witnesses contended that the publication within the press of his earlier evidence had caused loss to him in business; then, he desired that the evidence which he had been recalled to supply should not be published within the papers. The Supreme Court held that, the High Court has Jurisdiction to decide if it has Jurisdiction to restrain the publication of any document or information relating to the trial of a pending suit or concerning which the suit is brought. Court observed that a court of law is a public forum. Through public relations, citizens are convinced that the Court of Justice is impartial and, therefore, it is necessary that the trial be public and that the publication of the judicial report is not restricted. The public builds confidence in the administration of justice. Only in rare exceptional cases may the court hold the hearing behind closed doors or prohibit the publication of the procedural report while the dispute is pending.
The press also have a right to report legislative proceedings of the Parliament and State Assemblies as long as the publication is untainted by malice. This is a right that is also given in the Parliamentary Proceedings (Protection of Publication) Act, 1977.
Right to Advertise:
The freedom of speech and expression under Article 19(1)(a) of the Constitution of India, 1950 also includes the right to advertise or the right of commercial speech.
In Tata Press Ltd. v MTNL, (1995) 5 SCC 139 case, where Mahanagar Telephone Nigam Limited (MTNL) is a government company which is under the control of Government of India. It had a license under the Indian Telegraph Act to establish, maintain and control the telecommunication service within the territorial jurisdiction of the Union Territory of Delhi and the Municipal Corporations of Bombay, New Bombay and Thane. MTNL used to publish and distribute the telephone directory consisting of white pages. It did the task itself till the year 1987. From the year 1987 it hired contractors to publish the directory. It allowed the contractors to earn revenue for themselves by the way of advertisements and publish the advertisements as “Yellow Pages”. Thus, the telephone directory published by MTNL contained “white pages” which had the list of telephone subscribers and “yellow pages” which had advertisements obtained by the contractors to meet the expenditures and to earn revenue.
“Tata Press Yellow Pages” were published and distributed by Tata Press Ltd which contained paid advertisements procured from businessmen, professionals and traders. So, Mahanagar Telephone Nigam Limited and the Union of India filed a civil suit against the Tata Press Limited contending that they solely has the right to print and publish the list of telephone subscribers under the Indian Telegraph Act and thus Tata Press Limited has no such right to print and publish the same.
The Hon’ble Supreme Court held that advertisement which comes under commercial speech forms a part of the freedom of speech and expression which is given under Article 19(1)(a) of the Constitution of India and it is subject to the reasonable restrictions mentioned in clause (2) of Article 19. Article 19(2) mentions that in the interest of sovereignty and integrity of the nation, its security, its friendly relations with other states, for maintaining public order, decency, morality, defamation, incitement of offence Article 19 of the citizens can be restrained.
The Government is empowered to regulate and check the commercial advertisements that are deceptive, unfair, untruthful and misleading so that advertisements which have the power to spread information and awareness doesn’t disturb public order and peace. The Apex Court held that the Government of India and Mahanagar Telephone Nigam Limited does not have the right to constrain the Tata Press Limited from publishing and distributing “Yellow Pages”. It held that through the advertisements and with that the information contained in it the public is getting benefitted.
In Hindustan Times v State of UP, 1 November, 2002 case, the Supreme Court observed “Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will be saved by Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by packing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation.”
In Sakal Papers Pvt. Ltd. v. Union of India, AIR 962 SC 305 case, where the constitutional validity of the Newspaper Act, 1956 is being challenged by the petitioners. The newspaper act empowers the central government to regulate the cost of the newspapers with respect to the number of pages and the allocation of space for advertisements. The company also challenges the Daily Newspaper Order, 1960 under the Newspaper Act which was passed by the government to start such regulations. The act and order regulated the prices a publisher could charge for the newspaper and hence the petitions argued that both the Newspaper Act and the Newspaper Order violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. The court in this matter held that the laws mentioned by the petitioners i.e., Increasing advertisement prices would either result in the increase in the cost of the newspapers or would result in reduced number of pages which would be dissemination of ideas which indeed is a fundamental aspect of right to freedom of speech and expression. The court held that the right to freedom of speech cannot be taken away from a company with the sole objective of restricting business and hence the Newspaper Act and Newspaper Order were said to be unconstitutional by the Supreme Court of India.