The Constitution of India
The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the Freedom of speech and expression, as one of following six freedoms.
In a landmark judgment of the case Maneka Gandhi v. Union of India the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.
The constitution of India does not specifically mention the freedom of press. Freedom of press is implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions that are provide under the 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 the 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 organisations, 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: “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, 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:1. freedom of access to all sources of information, 2. freedom of publication, and 3. freedom of circulation.
In India, the press has not been able to exercise its freedom to express the popular views. In Sakal Papers Ltd. v. Union of India, 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, the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court 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 plea of the Government that it would help small newspapers to grow.
In Romesh Thapar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC 124), 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 ((1982) 1 SCC 1; AIR 1982 SC 6.), 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 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.
The freedom of speech and of the press does not confer an absolute right to express without any responsibility. Lord Denning, in his famous book Road to Justice, observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose 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 reasonable restrictions on free speech under following heads:
I. security of the State,
II. friendly relations with foreign States,
III. public order,
IV. decency and morality,
V. contempt of court,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.
Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.
Security of the State: Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. All the utterances intended to endanger the security of the State by crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State. It does not refer to the ordinary breaches of public order which do not involve any danger to the State.
Friendly relations with foreign States: This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardise the friendly relations of India with other State.
Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar, s case (AIR 1950 SC 124). The expression ‘public order’ connotes the sense of public peace, safety and tranquillity.
In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences between three concepts: law and order, public order, security of State. Anything that disturbs public peace or public tranquillity disturbs public order. But mere criticism of the government does not necessarily disturb public order. A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.
It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya (AIR 1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquillity.
Decency and morality: The word ‘obscenity’ is identical with the word ‘indecency’ of the Indian Constitution. In an English case of R. v. Hicklin, 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 (AIR 1965 SC 881). 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 The Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.
Contempt of court: 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 In re Arundhati Roy ((2002) 3 SCC 343), the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida (328 US 331 : 90 L Ed 1295 (1946)) 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 ((1970) 2 SCC 325; AIR 1970 SC 2015), 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 ((1984) 2 SCC 343; AIR 1984 SC 615.), contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.
Defamation: The clause (2) of Article 19 prevents any person from making any statement that injures the reputation of another. With the same view, defamation has been criminalised in India by inserting it into Section 499 of the I.P.C.
Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offence.
Sovereignty and integrity of India: This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.
In the opinion of Brajesh Rajak, author of ‘Pornography Law: XXX Must not be Tolerated' “Freedom of speech and expression can not be an excuse for distribution of indecent and immoral content to average person of the society".
Practical Constraints and Curtailments
Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.
According to the estimates of Reporters Without Borders, India ranks 120th worldwide in press freedom index (press freedom index for India is 39.33 for 2007). The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under subclause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court, defamation, or incitement to an offence". Laws such as the Official Secrets Act and Prevention of Terrorism Act  (POTA) have been used to limit press freedom. Under POTA, person could be detained for up to six months before the police were required to bring charges on allegations for terrorism-related offenses. POTA was repealed in 2004, but was replaced by amendments to UAPA. The Official Secrets Act 1923 remains in effect.
For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..."  With the liberalization starting in the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government. Organizations like Tehelka and NDTV have been particularly influential, e.g. in bringing about the resignation of powerful Haryana minister Venod Sharma. In addition, laws like Prasar Bharati act passed in recent years contribute significantly to reducing the control of the press by the government
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. Mere criticism of the government does not amount to sedition, if it was not calculated to undermine the respect for the government in such a way so as to make people cease to obey it and so that only anarchy follows. 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 (AIR 1952 SC 955), the court upheld the constitutional validity of the Section 124A of I.P.C and also upheld the view taken in Niharendu’s case.
FREEDOM OF THE PRESS
By press is usually meant all the media of mass communication although the printed media, as the oldest, is treated as the exemplar in most discussions. Free press usually means the right to publish, a right to confidentiality of sources, and a right to access. There's also a statutory right to know which was created by the Freedom of Information Act in 1966. Not only is it important to see the press as an integral part of the freedom of expression, but also as part of a system of social control whereby relationships between individuals and social institutions are adjusted. Constitutional law is concerned with the relationship of individual to society, so it's only a small step to see the significance of the press as adjuster or mediator of relationships with all the important social institutions of society - family, religion, economy, polity, law, and leisure.
Historically, the press first functioned from the top down, as house organs of the few who directed the opinions of the common people. In English common law, the press always belonged to the King. This is called the authoritarian theory of the press. With the demise of monarchy, the press came to adopt a role as partner in the search for truth, a kind of free marketplace for ideas and opinions, devoid of government control. This is the type of press that was desired by the founding fathers for the United States. It's called the libertarian theory of the press. This lecture will be mostly about this theory, and the following one.
In recent years, with media mega-mergers, some say the press has fallen back into the hands of a few. Five giant publishers control the printed media; another five companies produce all movies; and no more than three people control the broadcast media (radio and television). Not only do monopolies invite government intrusion, but they make it harder for the press to be a free marketplace of ideas. The best that can be accomplished are guarantees of equal time, and a professional sense of obligation to responsibly see that all sides are fairly presented in objective journalism. This is part of the social responsibility theory of the press. Libertarian theory and social responsibility theory are not incompatible.
Libertarian theory rests on a concept of negative liberty, "freedom from", or more precisely "freedom from external constraint." Social responsibility theory rests on a concept of positive liberty, "freedom for", or freedom to achieve goals by any ethical means necessary. Social responsibility theory adds to or corrects for things that the founding fathers neglected to consider with freedom of the press.
LIBERALISM, LIBERTARIANISM, AND THE PRESS
Liberalism is a political philosophy that change is for the better, especially rational change toward rational ends, like the perfectibility of human nature and society. Liberalism is egalitarian both to people and to ideas. Evil is seen as arising out of ignorance and lack of information. Libertarianism is a philosophy of limited government and individualism which emphasizes if a thing is not harmful to another, then no authority should restrict it. Libertarian philosophy holds that it is not the business of anyone to tell another what they should believe or not believe. Both philosophies are behind the notion of a free marketplace of ideas.
The libertarian theory of the press is that information is knowledge, and knowledge is power. It enables people to realize their potential, and since news is about people making the news, the press reminds us that society has not grown to an entity of greater importance than the people comprising it. Whether or not we regard free press as a natural or inalienable right depends upon how much we assume that people desire to know the truth, and will be set free by it. Perhaps the greatest spokesperson for these ideas was the English poet John Milton (1608-74) who said that people should have unlimited access to the ideas and thoughts of others in order to exercise their talent at reasoning between right and wrong. Milton also said that truth had an unique power of survival when allowed to assert itself freely and openly.
"Let all with something to say be free to express themselves. The true and sound will survive. The false and unsound will be vanquished. Government should keep out of the battle and not weigh the odds in favor of one side or the other." (Milton)
Milton's ideas became known as the "self-righting process" and the "open marketplace of ideas" as popularized in the publications of Thomas Paine, who also influenced the founding fathers. Paine added his own ideas about a free press being the universal reason or collective mind of a nation's people, and Thomas Jefferson added the idea that the press should serve an educational function, and also that "any government which cannot stand up to published criticism deserves to fall." By far, however, the most eloquent expression of the right to free press is from page 16 of John Stuart Mill's On Liberty:
"If all mankind minus one were of one opinion, and only one person was of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. The peculiar evil of silencing the expression of an opinion is that it robs the human race, posterity as well as the existing generation. If the opinion is right, they are deprived of the opportunity to exchange error for truth; if wrong, they lose what is almost as great a benefit - the clearer perception and livelier impression of truth, produced by its collision with error." (Mill)
Mill's ideas are also presentable in the form of four arguments against censorship:
If we silence an opinion, for all we know, we are silencing truth
A wrong opinion may contain a grain of truth necessary for finding the whole truth
Commonly held opinions tend to become prejudices unless forced to be defended
Unless commonly held opinions are contested from time to time, they lose their vitality
CAPITALISM, SOCIAL RESPONSIBILITY, AND THE PRESS
The founding fathers were also influenced by Adam Smith's notion of the "invisible hand" of capitalism. This idea had much in common with Milton's "self-righting process" but technically is an economic theory by which the actions of individuals pursuing their self-interests and security are led (by an invisible hand) to promote an end which may be no part of their intention, such as the betterment of society. The press should therefore operate within a capitalist system of free enterprise, and to this end, the founding fathers allowed advertising and entertainment content (to boost revenues and sales). Even Jefferson, who only favored educational content, supported a discounted postal rate for books and printed material (which still exists today). Capitalism was to be trusted in providing the free marketplace for ideas, opinions, news, information, and entertainment.
The problem with a press based on free enterprise is the problem of regulation. Owners and managers of the mass media must be trusted to regulate themselves and act professionally. For a true professional, there are some things money just cannot buy. The government should intervene only when the need is great and the stakes are high, and then only cautiously. It should not compete with private enterprise. In fact, government must go extra lengths to limit itself in the whole field because, in a democracy, tenure in office depends on public opinion, so the temptation for political involvement is great.
What ended up regulating the free speech market was the principle of utility. Mill and Smith were utilitarians (the greatest good for the greatest number), and a utilitarian right is somewhat different from a natural or inalienable right. Under a natural rights conception, freedom of the press involves the right to read or listen, with nothing preventing someone from throwing away the book or turning off the TV. Under a utilitarian conception, freedom of the press involves not just a right, but a duty, to read, listen, and think.
Freedom of press is grounded on the duty of the individual to their thought, their conscience. It is a moral right, which they are not free to relinquish, just as they cannot relinquish any self-interest. If one claims it for themself, they claim it for others as well, binding themself to respect the exercise of it. If one yields their claim to it, they weaken the claim of others. It is so bound up with mental existence and growth that the individual ought to claim it. It has value for both the individual and society. It is the individual's means of perpetuating himself through ideas, and society's sole source of intelligence, the seeds from which progress springs. (Blackstone)
Social responsibility therefore requires a balancing of private enterprise rights with vital social interests. The press itself should acknowledge that considerations of public welfare can override unfettered utterance, and individuals should realize that they cannot demand the media publish anything they say. There's a duty to think before anything is published in media. The right to freedom of expression is not absolute; it's conditional upon acceptance of this social duty or obligation. If a publication systematically panders to vulgarity, sensationalism, or degradation of the human race, it has forfeited its moral right to freedom of the press. Individuals are also not allowed to deliberately lie, libel, slander, or defame other individuals because doing so forfeits their social bond with others. Lies which are honestly mistaken beliefs, however, should be tolerated. Mischief must face its consequences.
SUPREME COURT DECISIONS ON FREE PRESS
As the preceding has been meant to illustrate, free press cases represent a whole separate area of First Amendment jurisprudence. You can't, for example, simply take the tests for free speech and apply them to free press, as if the press were simply the spoken word in print. With the exception of the "clear and present danger" test, the Supreme Court has rarely done that. In fact, it's difficult to say if there's any hard-and-fast rules or tests in media law. Because it's a First Amendment area, the Court follows the practice of ascribing strict scrutiny to each case, and the cases brought before it are not typically your small-time pamphleteer, but big, multinational, media conglomerates, so the debates are more about business than individual rights. The Court also takes a media-by-media approach to cases. What applies to books may not apply to broadcasting (radio and television) which may not apply to music or film, which may not apply to the Internet. Broadcasting is the most regulated medium because the FCC controls the airwaves; and the Internet is the least regulated because the Court doesn't believe people see anything they don't want to see.
Probably the closest thing that ties it all together is the issue of censorship, or what's called prior restraint in Constitutional Law. There's other forms of censorship for after a publication has gone to press, but the U.S. Supreme Court has always taken its strongest stance on any form of government content restriction before publication has occurred, this being seen as an inherent part of the right to publish. The essence of censorship is then seen as when a law is on the books forbidding anything scandalous or detrimental from being published, or when the government finds out the media plans to go public with something and orders them to stop, punishable by contempt, fine or imprisonment. Attempting to stop something already in progress is precisely what happened with the leading case in this area, which goes back to 1931 when an editor named Jay Near began printing a series of anti-Semitic articles alleging that Jewish gangsters were controlling the mayor and city officials of Minneapolis.
Near v. Minnesota (1931) - made it unconstitutional to shut down a newspaper, magazine, or periodical simply because it started publishing something scandalous, defamatory, or malicious. The chief purpose of the free press guaranty is to prevent prior restraints on publication, and the only recognized limitations are with wartime secrets, obscenity, incitement to riot, and calling for violent overthrow of the U.S. To extend those limits to scandal or charges of malfeasance in office is but one step away from a system of censorship.
Implicit in the Near decision is the Court's view that the law of defamation, applied against information media defendants, shall be construed and applied in such a way that their special responsibility for fairness and avoidance of malice, negligence, and incompetence shall be given due weight. To further understand this special treatment of the press, it may be insightful to look at the following two cases, which involve one of the only recognized limitations (wartime secrets).
New York Times v. U.S. (1971 -The Pentagon Papers Case) - On national security grounds, the government tried to stop publication of a classified document called "History of U.S. Decision-Making on Vietnam Policy" which the NY Times had obtained (stolen) via one of the study's contributors, Daniel Ellsberg. A federal appeals court supported the ban. Not only did the case involve the right to confidentiality of sources, but also the whole notion of getting a "scoop" on the story because the Washington Post was racing the NY Times to press. The Court ruled that any use of the judiciary to order constraint makes a shambles out of the First Amendment; that responsible journalists ought to have known better, and reported stolen classified material to authorities, but since the appellate courts have already acted injudiciously, the Supreme Court authorized its publication.
The issue of government secrets has come up time and time again with the CIA, the Grenada invasion of 1983 (in which press were barred from the island), and the Persian Gulf War (1991) in which the press were controlled close to 100%. Too many other examples, too numerous to mention, involved attempts by one media or another to "scoop" the competition. In the year 2000, one of the TV networks called the Presidential Election too soon, drawing attention once again to the fine line of journalistic responsibility that makes up freedom of the press.Lest the reader think the law allows the press to do anything, consider the following case where the Court drew the line on freedom of the press:
U.S. v. Progressive, Inc. (1979 - "The H-Bomb Secret, How We Got It, and Why We're Telling" Case) - Progressive magazine announced plans to publish instructions, complete with sketches, on how to build an H-bomb in your basement, and the government sought to stop publication and threatened to obtain every copy. The reporter who wrote the article had apparently visited several DOE facilities and deduced critical information from sensitive documents in plain view or from interviews with DOE employees. In a compromise gesture, the government offered to ban only 20% of the article, but the magazine refused, and instead encouraged a homemade H-bomb contest through the Chicago Tribune. The Supreme Court came down heavily, ruling that the lesser of two evils involves infringing upon freedom of the press for the sake of avoiding thermonuclear annihilation.
The above case draws attention to a reporter's right to access and highlights what the Court calls the "government right to withhold information that is not a matter of public record." The ways a judiciary imposes sanctions on the media include "injunctions" (stop orders, cease and desist orders) and "gag orders" (used mainly to avoid adverse pretrial publicity and rely upon voluntary cooperation by the press).
A reporter's right to access is a criminal justice issue because it involves various immunities and privileges with respect to police reports, crime scenes, victim data (names, photos), offender data, and prisoner interviews. Reporters have always been granted behind-the-scene privileges by the criminal justice system, but it's a complex area of law which intermingles criminal procedure, evidence, and freedom of the press. For example, a reporter's right to access and the public's need to know allow for pretrial publicity, but under evidence rules, failure by a lower court to do something about adverse pretrial publicity is grounds for overturning a conviction in higher court. As another example, reporters are exempt from having to reveal the confidentiality of their sources in trial court, but they must reveal their sources to a Grand Jury. So-called "shield laws" protect the confidentiality of sources in about 30 states; there's no federal shield law. So-called "sunshine laws" grant reporters access to the records of about 50 federal agencies, but there are exemptions.
The current status of settled law in this area is a hodgepodge of various practices. Some jurisdictions, as many know, treat reporters with little or no respect. Other jurisdictions, however, will go so far as to allow televisions in the courtroom or behind prison walls. Let's take a look at the variety of decisions in this area.