By Soumik Chakraborty
Editor’s Note:Freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible. This paper seeks to make a historical analysis of freedom of press from 1950 to 1970.
There is often confusion regarding the classification of the news media. Is it a ‘business’ under Article 19(1)(g) of the Constitution of India, or an activity deserving protection under Article 19(1)(a) as a right to freedom of speech and expression? This question is critical in determining the standards applicable to the conduct of the many news-providing outlets in India today.
The right to express opinions freely is critical in a democracy. Intellectuals have long championed it as a gateway to other liberties, positing that curtailment of free expression inevitably leads to restrictions on other rights such as the right to be informed. This right, however, is confused and equated with the necessity to overlook the media as a business (falling under Article 19(1) (g)), which is fundamentally flawed. The rights of a citizen and the rights of a media business owner fall under different baskets and contours, and cannot be considered the same. Freedom of speech and expression includes freedom of circulation, to the extent that the ability to propagate one’s expression is inherent in that freedom.[i]
The constitution of India does not specifically mention the freedom of press. Freedom of press is implied from Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions that are provide under Article 19(2) of the Constitution. Before Independence, there was no constitutional or statutory provision to protect the freedom of press. As observed by the Privy Council in Channing Arnold v. King Emperor:“The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject”.
The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression. Freedom of the press has been included as part of freedom of speech and expression under Article 19 of the UDHR. The heart of the Article 19 says: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
In Romesh Thapar v. State of Madras, Patanjali Shastri, CJ observed: “ Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”
The Supreme Court observed in Union of India v. Assn. for Democratic Reforms:[ii] “Onesided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.
In Indian Express v. Union of India,[iii] it has been held that the press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements. They are:
- freedom of access to all sources of information,[iv]
- freedom of publication, and
- freedom of circulation.
In India, the press has not been able to practise its freedom to express the popular views. In Sakal Papers Ltd. v. Union of India,[v] 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 held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v. Union of India,[vi] the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Supreme Court of India holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down the rebuttal of the Government that it would help small newspapers to grow.
In Romesh Thapar v. State of Madras, entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of little value”. In Prabha Dutt v. Union of India[vii],, the Supreme Court directed the Superintendent of Tihar Jail to allow representatives of a few newspapers to interview Ranga and Billa, the death sentence convicts, as they wanted to be interviewed.
There are instances when the freedom of press has been suppressed by the legislature. The authority of the government, in such circumstances, has been under the scanner of judiciary. In the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the further orders , 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. Similarly, prohibiting a newspaper from publishing its own views or views of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.[viii]
Under Indian law, the freedom of speech and of the press do not confer an absolute right to express one’s thoughts freely. Lord Denning, in his well-known book Road to Justice, stated that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose, pointing out facts and incidences which the authorities do not wish the public to know, and has to be punished for ‘misbehaviour’. With the same token Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under the following heads:
- security of the State,
- friendly relations with foreign States,
- public order,
- decency and morality,
- contempt of court,
- incitement to an offence, and
- sovereignty and integrity of India.
The word ‘obscenity’ is identical with the word ‘indecency’ of the Indian Constitution. In an English case of R. v. Hicklin,[ix] the test was laid down according to which it is seen ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra [x]In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.
The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice.
In re Arundhati Roy[xi], the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida[xii] in which the United States Supreme Court observed: “If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise”.
In E.M.S. Namboodripad v. T.N. Nambiar[xiii], the Supreme Court confirmed the decision of the High Court, holding Mr.Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah[xiv], contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.
The freedom of press cannot be misused for sedition as well. According to the English Law, sedition embraces all the practices whether by word or writing which are calculated to disturb the tranquillity of the State and lead an ignorant person to subvert the Government.[xv] Basic criticism of the government is not seen as sedition unless the Government believes that it was calculated to undermine the respect for the government in such a way so as to make people cease to obey it.[xvi]
Section 124A of the Indian Penal Code defines the offence of sedition as follows: “Sedition. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”. But Explanation 3 says “Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”. In Kedar Nath v. State of Bihar[xvii], the court upheld the constitutional validity of the Section 124A of I.P.C .
While any restrictions of free speech and expression must be reasonable, there is no provision exhorting the individual to be reasonable in the exercise of their rights. It could be argued, in fact, that, “If liberty means anything at all, it means the right to tell people what they do not want to hear.” Nevertheless, the right to free speech and expression does not exist in a vacuum, and must be balanced with other rights. It is in maintaining this balance that the idea of responsibility as part of a right comes into play. Thus the tension between freedom of expression and intervention by authorities remains. As noted above, the reasonableness of restrictions on freedom of speech are decided on a case by case basis. Any intervention by the state would be dictated by societal standards of acceptability. The laws currently in place show the state will step in to prevent violence and harm to reputations. The popular reactions to other government measures, such as the policing of the internet, show that in these cases the government seems to be going too far.
Once the way is clear for the government to intervene, the extent and result of that intervention must be specified. There needs to be a clearly-defined spectrum, with cautions or fines at one end, and imprisonment at the other, which can be applied to reign in infringing expressions. The punishment will, of course, depend on the circumstances of the intervention, with proportionality the key principle to follow.
While individuals will have to rely on authorities being fair and just, the media industry may be able to pre-empt government action. If the industry was to regulate itself, any offences could be dealt with at that level. In order to maintain effective self-regulation, the industry first needs to create an architecture which supports it. In the first place, any industry association or body responsible for regulation would need universal membership. Allowing potential members to opt-out defeats the point of self-regulation and leaves the system vulnerable.
In addition, the association should endorse a basic code of ethics and guidelines on transparency, so that providers of news adhere to a minimum standard. Finally, it is important that this association or advisory body has real punitive powers. The threat of real and meaningful sanctions—beyond fines which may not even register with corporate-sponsored entities— must be used to ensure press quality.
If an association or body within the media industry is incapable of functioning as described above, another possible option is the introduction of an independent regulator. Such a body would need to be independently mandated and maintained. It would have to function impartially, free from both government and media control. Another important aspect of an independent regulator would be the scope of its powers. Ideally, it should cut across platforms to reflect a convergence in policy, so that providers of news are held to equivalent standards no matter what their method of dissemination.
Meanwhile, merging superfluous associations would increase efficiency. The independent regulator could act in conjunction with the self-regulatory body. This would allow the industry to monitor itself, while avoiding bias by leaving the punitive powers with an independent body.
As with any suggestion of introducing new laws or administrative bodies, balance is integral to the equation; the two must work in tandem. If reliance on the independent regulator is too great, then there is a risk that the regulator will act unilaterally, side-stepping legal scrutiny. At the same time, the level of discretion afforded to judges should not be such that the regulator is undermined. The judiciary and the administrative sector must support each other.
Formatted on 1st March 2019.
[i]Romesh Thapar v State of Madras  SCR 594
[ii](2002) 5 SCC 294.
[iii](1985) 1 SCC 641
[iv]M.S.M Sharma v Sri Krishna SInhaAIR 1959 SC 395.
[v]AIR 1962 SC 305.
[vi]AIR 1973 SC 106; (1972) 2 SCC 788.
[vii](1982) 1 SCC 1; AIR 1982 SC 6.
[viii]Virendra v State of Punjab, AIR 1957 SC 896, Express Newspapers v. Union of India, AIR 1958SC 578, 617.
[ix] LR 3 QB 360.
[x]AIR 1965 SC 881.
[xi] (2002) 3 SCC 343
[xii]328 US 331 : 90 L Ed 1295 (1946)
[xiii](1970) 2 SCC 325; AIR 1970 SC 2015
[xiv](1984) 2 SCC 343; AIR 1984 SC 615.
[xv] R. v. Salliven, (1868) 11 Cox Cases 55.
[xvi]Niharendra v. Emperor, AIR 1942 FC 22
[xvii] AIR 1962 SC 955