Freedom of Press under the Indian Constitution
Author: Kunal Jain
Symbiosis Law School, Noida.
This Research Paper is written by Kunal Jain, pursuing BBA LLB from Symbiosis Law School, Noida. This Paper deals with the laws related to the Freedom of Press in the Indian Constitution.
Freedom of Speech & Expression is of paramount importance under the Indian Constitution. The Constitution guarantees freedom of Speech & Expression under Article 19. Freedom of Press, per se, is not mentioned in our constitution but is protected under the right to freedom of speech & expression. This Article provides freedom of the press & also the restrictions in certain cases like incitement of an offence, threat to national security, defamation, etc. Because many times it happens that the media crosses its limits of fair reporting & intrudes personal spheres of someone’s life & in order to protect that there are certain limitations & restrictions mentioned in Clause 2 of Article 19. However, on the other h&, the constitution also ensures the freedom of the press like the freedom of receiving & spreading information, report legislative proceedings, etc. & the press have all the rights to practice these rights given to them as long as they are not violating other person’s rights. To protect the rights of the people, the government has taken countermeasures to combat the circulation of fake news or even restriction of certain objectionable contents. There have been cases where Press has been found guilty & the courts have imposed restrictions on it as well. Nevertheless, these restrictions just insure the fair reporting of any news, the press still is important for the smooth functioning of democracy.
We say that there are three Pillars of Democracy i.e. Legislative, Executive & Judiciary, but actually, there are four Pillars. The fourth Pillar is The Press. This Fourth Pillar is responsible for controlling the activities of all the above pillars & mainly keeping the General Public informed about them too. Basically, this pillar represents the eyes & the ears of the public because the press watches those in power i.e. the government & ensures they do not misuse their power.
In India, Freedom of Press is inferred from Freedom of Speech & Expression guaranteed under Article 19 (1) (a)[i] of the Indian Constitution. The freedom of speech & expression involves the right to express by way of speaking, or writing or publishing a particular matter in any form. The only restriction that the Media has, is mentioned under Article 19 (2)[ii] which provides certain restriction on the exercise of the freedom of speech & expression.
Article 19 & Freedom of Press
As also mentioned in the introduction, there is no separate provision for the freedom of the press in the Indian Constitution, so, it is derived from Article 19 (1) (a) which, in turn, provides for the Freedom of Speech & Expression. As per the case of Indian Newspapers vs Union of India[iii], the Supreme Court held that the main objective of the Press is to advance the public interest & it does so by publishing the facts & opinions without which the so-called democratic electorate cannot responsible decisions.
In the case of Mother Dairy Foods & Processing vs Zee Telefilms Ltd.[iv], the Supreme Court should be considered a Zealous Guardian of the Freedom of Speech & Expression & also has the right to comment fearlessly & vigorously on any matter, especially the matters related to the public interest. Courts in certain cases have considered the Press as a medium of spreading knowledge & any such vital information on the matters which are going on in the other parts of the country.
Scope of the Freedom of Press
- Freedom to Spread information:
Article 19 of the Constitution just does not give the Press right to publish but also gives the right to circulate the information to the General Public as well. In the case of Romesh Thappar vs the State of Madras[v], the Supreme Court has held that Article 19 includes freedom of propagation of ideas, & has also acknowledged that freedom of circulation is an essential part of the freedom of publication as well. The courts in this case have also held the laws, which somehow violated the rights of the press.
The Supreme Court in the case of Sakal Papers vs Union on India[vi] has held the provisions of the Newspaper (Price & Page) Act[vii] as unconstitutional stating that it violates the Article 19 (1) of the Constitution. The Court also held that the state cannot make any such laws which in turn restricts the rights of the freedom of Press.
- Freedom to Receive Information:
The press by way of the Right to Information Act[viii] has the freedom to receive & dem& any public information except for the information, which in turn can violate Article 19 (2). The courts have considered that if the Press is not equipped with the information, it cannot empower the public with that knowledge & the public, therefore, will not have any knowledge of what matters are currently going on in the Country. Therefore, the Press by way of the Right to Information Act can equip the information & can circulate it to the public as well.
- Freedom to Report Court Proceedings:
The press also has the right to report the judicial proceedings. In the case of Sahara India Ltd. Vs SEBI[ix], the Supreme Court in this case held that Press has the right to report Judicial Proceedings as well. The courts in the cases have held that the Press has the freedom to publish court proceedings but such publication has to be made, after ascertaining its genuineness, correctness & authenticity from any governmental records only. If the Press keeps into consideration all the three points, the press, therefore, can publish information in respect to the court proceedings.
- Freedom to Report Legislative Proceedings:
Press by way of the Parliamentary Proceedings (Protection of Publication) Act[x] has the right to report the legislative proceedings of the parliament & state assemblies. There is only one limitation in this freedom i.e. that there should not be any mala-fide intention behind such publications.
- Freedom to Conduct Interviews:
The press has the right to Conduct Interview of anyone as long as the following conditions are fulfilled:
- That the consent of the person is necessary & the press has to take the consent of that person before taking the interview.
- The press does not force that person to answer a question against his own will
- That the person can stop the interview at any moment & the press does not ask any further questions after that.
In the case of Prabha Dutt vs Union of India[xi], the Supreme Court held that doesn’t have the absolute or unrestricted right to information & if the Press has the Consent of the prisoners then they have all the rights to conduct an interview in the Prison.
- Freedom to Advertise
The Supreme Court has also acknowledged the right to advertise under the Freedom of Speech & Expression as mentioned in Article 19. The Supreme Court in the Case of Tata Press vs Mahanagar Telephone Nigam[xii], held that the Term “Commercial Speech” could not be denied under Article 19 just because a Businessman gave it. The Public has the right to receive & listen & also to read the “Commercial Speech” as well.
- Freedom to Criticize
The press has the right to criticize the governmental policies, their actions, their laws, etc. This freedom also comes with the restriction that the press cannot abuse this right & also cannot publish anything that can provoke the citizens against the government. Section 124A[xiv] of Penal Code, which deals with the cases of Sedition, is used to file any case where the Press has violated or abused the freedom given to it by way of Article 19. The Courts determine such cases of Sedition in such a way that, as long as the matter so published is turning the General Public against the government, such case of sedition is not admissible in the Court of Law.
- Freedom to Broadcast
Article 19 also gives the right to publish any information not just by way of newspapers but also by way of Channels, radios, websites, blogs as well. For Example, News can be published on YouTube or any website as long as it does not violate Article 19.
Test of Reasonableness & Article 19(1) (a)
In applying the test of reasonableness, the courts consider a proper balance between the social controls i.e. the public order & the rights of the individual. Supreme Court in certain cases has laid down guidelines, which the courts follow today to test the reasonableness of a situation. The courts take into consideration:
- The nature of the right infringed.
- Prevailing conditions at that point in time.
- Any mala-fide intention behind the publication of such matter.
- Purpose of the restrictions imposed.
- How far is the restriction proportionate to the disturbance in the public order or the sovereignty of the country?
In the case of Ishwari Prasad & Ors. Vs N.R. Sen & Ors[xv], The court held that several circumstances such as mala-fide intention & the conditions prevailing at the time in the country have to be taken into consideration while deciding for the reasonableness.
Restrictions on the Freedom of Press
Article 19 (2) provides for reasonable restrictions on the freedom of the press. There are seven limitations to the freedom of the Press. All these restrictions are imposed on the press in order to maintain Good Friendly relations with other nations & in maintaining public order as well.
The restriction according to Article 19 is based on the grounds:
- Sovereignty & integrity of the State
This part of the provision prohibits any such form of speech, which in any way can hamper the sovereignty, & integrity of India. So in conclusion to this, anything, which can possibly affect the sovereignty & integrity of India, can be restricted & if the Journalist is withholding any such information, which can be helpful in the interest of protecting the sovereignty has to reveal all such information.
In the case of People’s Union for Civil Liberties & Ors. Vs Union of India[xvi], The Supreme Court, in this case, held that the Prevention of Terrorism Act[xvii], is made to maintain the Sovereignty & Integrity of India & if a journalist is withholding any information, has to reveal all of it, since this is the matter of protecting the Sovereignty of the State.
- Security of the State
Rights under Article 19 (1), cannot be exercised in a way, which endanger national interest, or public interest & communication in any form, which can cause social unrest or riots or anything related to that, are against the security of the state & all such things published are subject to be restricted under Article 19 (2).
In the case of Shailabala Devi Vs State of Bihar[xviii], the Supreme Court held anything, which in turn can incite or encourage the citizens to commit any offense. Including offenses like Murder or any Violent Crimes comes in the ambit of the security of State under Article 19 (2) & can be removed by imposing Section 4(1) (a)[xix] of the Press (Emergency Powers) Act.
- Public Order
The word Public Order is synonymous with public peace, safety & tranquillity. In the case of Ramjilal Modi vs State of Uttar Pradesh[xx], it was held that the if anyone publishes any material with the intention to outrage someone’s religious feelings comes under the ambit of Article 19 of the Constitution & furthermore such published matter is liable to be restricted under Clause 2 of Article 19.
- Decency & Morality
For maintaining decency or morality in the state, Article 19 also restricts any matter which so published can disturb the Decency & Morality of the State. Section 292[xxi] of the Indian Penal Code read with Article 19 (2) is used in order to maintain such decency or morality in the state.
In the case of Akhila Publishers vs State of Karnataka[xxii], the court held that the Free & fearless press is the fourth pillar of democracy & Section 292 of IPC dealing with obscenity is a reasonable restriction on the Freedom of Speech & Expression. Since this provision is made, in order to maintain decency & morality in the state.
- Contempt of Court
Contempt of Court is a restriction, which can be imposed if anything is published which in turn affects the dignity of the court. Courts have held that the Freedom of Speech & Expression is subject to the law of Contempt. Supreme Court & the High Courts by way of Article 129[xxiii] & Article 215[xxiv] respectively can take actions against such a contempt. There have been many cases where the courts have taken action against such cases.
The Supreme Court in the case In Re: Arundhati Roy[xxv], held that if any attempt to tarnish, diminish or wipe out the confidence of the people in the judiciary has been made. Then the only thing, which is available to the judiciary against such an attempt, is the Contempt of Court & the whole law of contempt of court has been laid down in order to impose reasonable restrictions.
- Friendly Relations with Foreign Nations
Article 19 restricts any activity, which can thereafter jeopardize the government’s efforts to maintain good relations with the other nations. The main objective of this restriction is to counter any material published with mala-fide intention.
- Defamation & Incitement of an Offence
Defamation is also protected under Article 19 (2). Courts have always respected the Reputation of Person & any such publication, which in turn can cause damage to the reputation, can be restricted under the provisions of this Article. In the case of ABK Prasad vs. UOI & Ors.[xxvi] The court held that the right of freedom of the press is not higher than the right of freedom of speech of an individual & also that, the freedom of the press does not include freedom to defame any person.
On the other h&, the use of freedom of Speech & Expression in order to incite an offence is considered a threat & can also be restricted by way of this Article. In the case of State of Bihar vs Shailabala Devi[xxvii], it was held that the incitement to murder or any other violent crime can easily endanger the Security of the State & hence a restriction against such incitement can be considered constitutional even under Article 19 as well.
The press or the fourth pillar of democracy is the voice of the public to the government. As there is no specific provision, which governs the Freedom of Press in the Constitution, the Freedom of Speech & Expression governs it, as is mention under Article 19 (1) (a). Freedom of the Press enables everyone to express their opinion to others related to the new government policies, etc.
The press enjoys all the freedoms & rights which a normal citizen enjoys. However, irrespective of all the freedoms that the press enjoys it comes with certain restrictions, which henceforth, are mentioned in Clause 2 of Article 19. The restrictions mentioned under Article 19 are just there to ensure that no one with any mala-fide intention misuses those rights & cause disturbance or threat of any sort.
[i] INDIA CONST. Art. 19, Cl 1, Sub Cl a.
[ii] INDIA CONST. Art. 19, Cl 2.
[iii] Indian Newspapers vs Union of India, AIR 1986 SC 515 (India).
[iv] Mother Dairy Foods & Processing vs Zee Telefilms Ltd., AIR 2005 Del. 195 (India).
[v] Romesh Thappar vs the State of Madras, AIR 1950 SC 124 (India).
[vi] Sakal Papers vs Union on India, AIR 1962 SC 305 (India).
[vii] Newspaper (Price & Page) Act, 1956, Acts of the Parliament, 1956 (India).
[viii] Right to Information Act, 2005, No. 22, Acts of the Parliament, 2005 (India).
[ix] Sahara India Ltd. Vs SEBI, AIR 2013 (1) SCC 1 (India).
[x] Parliamentary Proceedings (Protection of Publication) Act, 1977, No. 15, Acts of the Parliament, 1977 (India).
[xi] Prabha Dutt vs Union of India, AIR 1982 SC 6 (India).
[xii] Tata Press vs Mahanagar Telephone Nigam, AIR 1995 SC 2438 (India).
[xiii] Hindustan Times & Ors. Vs State of Uttar Pradesh, AIR 2003 SC 250 (India).
[xiv] Section 124A, Indian Penal Code, 1860, No. 45, Acts of the Parliament, 1860 (India).
[xv] Ishwari Prasad & Ors. Vs N.R. Sen & Ors., AIR 1952 Cal 273 (India).
[xvi] People’s Union for Civil Liberties & Ors. Vs Union of India, AIR 2004 SC 456 (India).
[xvii] Prevention of Terrorism Act, 2002, No. 26, Acts of Parliament, 2002 (India).
[xviii] Shailabala Devi Vs State of Bihar, AIR 1952 SC 329 (India).
[xix] Section 4(1) (a), Press (Emergency Powers) Act, 1931, No. 23, Acts of Parliament, 1931 (India).
[xx] Ramjilal Modi vs State of Uttar Pradesh, AIR 1957 SC 620 (India).
[xxi] Section 292, Indian Penal Code, 1860, No. 45, Acts of the Parliament, 1860 (India).
[xxii] Akhila Publishers vs the State of Karnataka, ILR 1988 Kant 481 (India).
[xxiii] INDIA CONST. Art. 129.
[xxiv] INDIA CONST. Art. 215.
[xxv] In Re, Arundhati Roy, AIR 2002 SC 1375 (India).
[xxvii] State of Bihar vs Shailabala Devi, 1952 Cri LJ 1373 (India).