J 2020 10 GJLDP October 102

SCC Online Web Edition, Copyright © 2021
Page 1 Monday, June 21, 2021

Printed For: Sumohiotha V, National Law University Orissa
SCC Online Web Edition: http://www.scconline.com
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(2020) 10 GJLDP (October) 102
Freedom of Speech and Expression with Special Reference to Freedom of Press
FREEDOM OF SPEECH AND EXPRESSION WITH SPECIAL REFERENCE TO FREEDOM OF PRESS

by
Forum R. Patel* and Purvi Pokhariyal**
“Give me the liberty to know, to utter, and to argue freely according to
conscience, above all liberties”.
—John Milton1
Freedom of Press, popularly considered as the fourth pillar of modern-day
democracy, is an essential and quintessential part of the democratic nation of India.
Active participation of a modern and informed citizenry acts as a much-needed
vigilance upon the actions of the administration, which in turn is a necessary feature in
the modern democratic society. Freedom right related to media denotes the right to
speech, communicate & express through the mediums such as several electronic and
print media, and now the omnipresent and omniscient Internet sources. While the
essential prerequisite of freedom of the press is the limited intervention of an
overreaching state, its preservation through constitutional or other protections is as
much vital for the nation as the preservation of democracy itself.2
The media, strong mass communication medium, should be kept free to play its
part in building a healthy society. Not giving the right to people freedom of the press
and media will weaken the power to influence public opinion and will be against the
idea and concept of democracy.
Impliedly mentioned in Article 19(1)(a), that special mention of the freedom of
press was not necessary as the press or an individual were similar as far as their right
to freedom under Article 19(1)(a) was concerned. The constitution-makers considered
freedom of the press as an integral part of Article 19(1)(a) of the Constitution.
Freedom of the press is mentioned under Article 19(1)(a), Indian Constitution
which talks about right to free speech and expression (Right
Page: 103
to freedom of speech and expression), in Part III and which declares it to be one of
the fundamental rights available to the citizen.3 Article 19(1)(a) states as follows.
19. Protection of rights regarding freedom of speech etc

(1) All citizens shall have the right
(a) to freedom of speech and expression;
In Romesh Thappar case4 , the Supreme Court declared press freedom to be
intrinsic, and a fundamental element of the right to freedom of expression and
speech.In the above case, freedom of speech and expression included the spread of
ideas and freedom of movement.5
Right to free speech and expression means the right to share and publish one's
ideas and other views with complete freedom, and to use all available means of
publishing and the right to distribute and publish ideas and views.
However, the freedom under Article 19(1)(a) is not absolute and subject to
reasonable restrictions under Article 19(2).
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(2) provides that nothing mentioned in sub-clause (a) of clause (1) shall affect
the operation of any existing law, or restrict or prevent the State from making any
law, but such restriction should be reasonable on the exercise of the right provided
by the said sub-clause by the sovereignty and integrity of India, the security of the
State, friendly international relations, public order, decency or morality or
concerning contempt of court, defamation or incitement to an offence.
The idea of free speech and expression was trampled upon during the British era in
forms of different acts and regulations on different grounds. In 1780, James Augustus
Hickey published The Bengal Gazette, later to be crushed in 1872 as it was blatantly
criticising the wrongful actions of the British Government. More newspaper and
journals followed the route as Calcutta Chronicle, The Bengal Journal, and Bombay
Herald and Madras Courier.
At the inception, Lord Wellesley enacted Censorship of Press Act, 1799, which
imposed wartime press restrictions including pre-censorship. Many other legislations
include Licensing Regulations, 1823, Press Act of 1835 or Metcalfe Act, Licensing Act,
1857, Registration Act, 1867 and the
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most demonic of those, the Vernacular Press Act, 1878. The Vernacular Press Act,
1878 was allegedly constituted for ‘better control’ of the vernacular press and
repressively penalised seditious words. Newspaper (Incitement to Offences) Act, 1908
and Indian Press Act, 1910 were other ferocious legislations which imposed severe
curtailment upon freedom of the press.6
Therefore, it can safely be concluded that such a right is for the betterment of a
viable democratic society and its informative citizenry to ensure their fundamental
right and freedom guaranteed under the Indian Constitution.7
Lord Mansfield8 Opined ‘liberty of the Press’ as “printing deprived of any
authorisation subject to the significances of law.9 Voltaire, a great proponent of liberty,
exclaimed : “I do not agree with a word you say, but I shall defend to the death your
right to say it.”10 Jefferson's declared that “Were it left me to decide whether we
should have a government without newspaper or newspapers without the government,
I should not hesitate a moment to prefer the latter.” Pandit Jawahar Lal Nehru
reflected similar views “I would rather have a completely free press, with all the risks
involved in the unwanted use of that freedom, than a suppressed or regulated press.”
The 1st Amendment to the U.S. Constitution provides for absolute freedom of the
press.11
Personal Liberty and national ideas can only be realised when conceptualisation of
press freedom is appropriately formed and drawn. Freedom of expression is a
precursor for the existence and development of a free and dynamic society. Therefore,
freedom of press acts asanenabling structure for the safeguard of other fundamental
rights12
One of the essential features of democracy is an alert legislative body and vigilant
public opinion voiced through various channels. In India, freedom of the press no
categorized or separate protection but has been considered as basic right of any
citizen. It was opined by Shri B.R. Ambedkar
Page: 105
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that, “The rights provided to the press are no special rights which might be distinct
from an individual's”.
On various stages of Independent India, Hon'ble Supreme Court of India had the
opportunity to deal with the sanctity of freedom of the press and the scope and extent
of its operation. As the fundamental rights are not absolute, the freedom of the press
also comes with a responsibility attached so that it does not become “the scourge
(curse) of the Republic”. It suggests that a publication made by media should be self-
vetted and self-restrained. Any news should not be intended to incite false alarms but
should be backed by reliable, concrete facts. Thus, the limitations on freedom of
speech and expression also apply vigorously to the freedom of the press. Also, as the
effect of the expression and opinion of the media is geometrically expansive than that
of an individual's; the responsibility of media becomes much more severe.13
Recognition of the available rights by the government is as much important as is
the availability of such rights. Therefore, the presence of a vigilant media is needed to
ensure that the government does not sleep over the rights of the masses.14 Media also
reflects and projects the work being done by the government and the representatives
of the people and keeps a democratic government on its toes. The concept of press
freedom represents responsibility in regards to democratic control.
Press freedom is not only limited to print media but also consist of any other kind of
dissemination and any publication that serves as a disseminator for educating the
masses, and that can form public opinion. Thus, freedom of the press means freedom
of printing, publishing, circulating through which the information essential to form a
public opinion which may be crucial in the nation's governance, subject to the
limitations and restrictions imposed by the Constitution and the laws made
thereunder.
To order to enforce the above restrictions, numerous laws have been passed to
ensure that no foreign or internal powers intervene with the press, such as15 various
media laws, the Indian Penal Code, 1860, the Indian Telegraph Act, 1885, the
Copyright Act, 1957, the Contempt of Court Act,
Page: 106
1971, and many more, several of which were introduced and put into effect after the
constitution was enacted.
Though the United States and Indian protection of freedom of the press have the
same expression and essence. However, the crucial difference between the United
States and Indian Constitution with regard to the freedom of the press is its
codification in the Constitution's text. While, the U.S. Constitution mentions it
explicitly in its Constitution, Indian guarantee of freedom of press emanates from the
freedom of speech and expression. The purview of freedom is also interpreted
differently in each nation in light of cultural differentiation. In the case of Romesh
Thappar, it was opined by Hon'ble Supreme Court of India that:
“Freedom of speech &press is laid at the foundation of all democratic
organisations, for without free political discussion and deliberations, no public
education, so essential for the proper functioning of the process of popular
government, is possible16
Democracy must never be allowed to be diminished to biased information as
freedom of receiving information, holding opinions and right to dissent is also an
extended branch of the freedom of speech and expression as interpreted under Article
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19(1)(a)17 . The press plays a vital and quintessential role for the democratic
machinery to function on its toes. Furthermore, it is the duty of the court to ensure the
press freedom remains intact,18 which include the freedom of publication, circulation
and access to information by the common populous19 . By bringing the freedom of the
press within the ambit of Article 19, the Supreme Court has ensured the applicability
of Article 32 over the infringement of such rights by the administration as well as the
legislative wing of the government.
One of the critical issues in enforcing the freedom of the press was the restrictions
on the upper ceiling of several pages which a newspaper should consist of. In Sakal
Newspapers v. Union on India, the Hon'ble Supreme Court held that setting a limit on
the numbers and size of newspapers 20 was violating the right. In the above case, the
court was of the opinion that,
Page: 107
“By providing the specific/maximum number of pages for the specific price, the
effect of the Newspaper Act and the Newspaper Order was to enable newspapers
either to reduce the number of pages or to raise the prices. While the former
restricted the distribution of news and views by the newspapers, the later would
have knowingly reduced their circulation. Both consist of direct infringement of the
newspapers’ right under Article 19(1)(a). The freedom of a press/newspaper to
publish any number of pages and to circulate to any number of people is an integral
part of the freedom of speech, and no legislative action can strangle such
fundamental freedoms21 ”.
The trend of the judicial precedents on the press freedom indicates a liberal
interpretation of the concept in implementation of the freedom of the press with
certain limitations to make the press more balanced and effective. The Hon'ble
Supreme Court has played an instrumental role in time and again in expanding the
horizons of the Constitutional interpretation and thereby laying down a strong
foundation to the freedom gas such guaranteed under Part III of the Constriction.
However, any right comes with responsibility as well. Any authority and liberty may
be more harmful than good if not self - restrained. The Constitution categorically laid
down that noun controllable license must be given to any organisation. The power and
reach of the media in the 21st century are more than ever. It has become much more
influential, persuasive and invasive. Therefore, the responsibility of the media in any
form increases manifold. Any distorted or fragmented opinion may persuade the
masses in the wrong direction. The power of the media should be used in the best
interest of public good. A free press is one of the main foundations of modern
democracy, and it is necessary for democracy's survival. It was seen as a necessity for
the mental health and well-being of society and was deemed necessary for the full
development of individual personality in a democracy22 . The Supreme Court in the In
Re : Harijai Singh Judgment interpreted the freedom of the press in its widest
amplitude and contributed to the development of new horizons of interpretation
thereby extending the operation of the said right.
However, it has to be ensured that this freedom is not abused or treated as a
guaranteed license to degrade the essence of democracy in the nation.
Page: 108
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The media must also not take it for granted and must be self-restrained within the
purviews of reasonable restrictions, inter alia, maintaining of sovereignty & integrity of
India, Security of the State and incitement to an offence etc. Therefore, the
government is at the liberty, if it deems fit and necessary, to enact a law or impose
regulation on the dissemination of information vide Article 19(2) of the Indian
Constitution.
Therefore, despite having an insurmountable amount of freedom enjoyed by the

press, it will always be subject to the scrutiny if it contributes to offences such as
sedition as defined in Section 124-A of the IPC.23 As Section 124-A imposes
reasonable restrictions on the pretext of maintaining public order, it is therefore
protected in accordance with Article 19(2) of the Constitution and cannot be said to
impinge on the sanctity of freedom of the press.24
Censorship is another contentious limitation on the freedom of the press, which was
as old as the freedom of the press itself. The evil of censorship happens when the
restriction reaches the heart and soul of the right to be curtailed even before it is
practised, and there is almost no room for public appraisal and debate. The law
imposing pre-censorship or curtailing the circulation was held to be violative of Article
19(1)(a)25 . There have been numerous instances wherein the government has banned
many books, movies to be publicly circulated. Pre-censorship indicates the dictatorial
form of government, and it must be exercised as it proves to be a fatal blow upon the
existence of the freedom of the press itself.
It was even opined26 that “merely because dissent, disapproval or criticism is
expressed in strong language is no ground for banning its publication27 ”. However,
access to any government was not appropriate as censorship was often used against
its policies and in such a situation, an appeal to the government would be nothing
short of an appeal from Caesar to Caesar28 . Consequently, an appeal against
censorship may sometimes find no simple
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means of recourse, and the time taken to pursue the appeal may undermine the very
aim. Consequently, it can be said that freedom of the press serves a twofold function,
which defines independence for both individuals and the legislature29 .
Pre-censorship was enforced for the first time in Indian history during the
declaration of an emergency, which was full executive order in nature, by order of June
26, 1975. Any comment made during this time, even of a mild nature, was viewed as
a breach of the restrictions imposed30 because of what became miserable the condition
of the press and its freedom31 .
Freedom of the press has three prerequisites—
1. Access to information to form an opinion32 ,
2. Freedom of publication and
3. freedom of circulation33
In India, freedom of speech and expression has opened the channels of free
conversation of any/all issues. It ensures free flow and logical nexus between the
government and the people and guides the citizenry towards forming a strong public
opinion and consequent right to express such opinions. Hence, freedom of speech is
considered to be the defensive wall of the democratic Government.
The media has acquired the face of the public educator making formal and non-
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formal education at mass scale, particularly in the developing world where modes of
receiving information are relatively limited in a specific part of the society. The
purpose of the press is to improve the knowledge base of the masses by equipping the
citizens with accurate facts without which opinion formation is not possible.34
Democracy, which genuinely embraces a positive interaction between the
government and people, should be experienced in its real sense and spirit by giving
ample opportunity and suitable environment for making choices, expressing one's
opinion to the public and getting acquainted with other's opinion and free discussions
which are inherent to the constitutional
Page: 110
viewpoint on the press freedom in India.35 To establish an opinion to engage in a

democratic society politically, freedom of speech is mandatory and hence is rightly
considered to be the fourth pillar of a democratic government36 .
Concerning the restrictions on freedom of the press, contempt of court is also to be

taken into account. Sections 3, 4, 5 and 7 of the Contempt of Court Act, 1971, impose
certain restrictions on the press to avoid any interference or obstacle in the
administration of justice and to protect the judiciary from any undue criticism or
scandal. Section 4 provides for the protection of accurate and honest coverage of
judicial proceedings or any stage thereof and thus includes proceedings pending or
completed in the course of its transfer. Section 3 provides for any pending judicial
proceedings in respect of innocent publication. Whereas Section 5 applies to the
publication offair comment on the merits of any case heard and ultimately decided
upon. Section 7 lays down the provisions relating to the proceedings in camera.
The main objective of Section 3 is to prevent any publication concerning sub-judice
matters to make the judicial process free from prejudices and prior opinion. The
Phillimore Committee suggested the dangers in provoking public debate in media with
respect to any proceeding pending in the court37 . The opinion is as follows:
“The danger of ‘trial by press’ or ‘trial by television’, popularly known as ‘media
trial’ are too obvious to require amplification. They are real dangers, and if the law
were to permit publication of this character, there would be a severe risk that
confidence in the impartial administration of justice would be severely impaired.] In
addition, there are always disappointed litigants who are prepared to ascribe their
failure to prejudice or bias on the part of judge or jury or both, and if the ‘media
trial’ and actual litigation led to the same result it would be only too easy for the
losing party to ascribe his failure to improper influence exercised upon the
tribunal/court. It would be unfortunate if the high reputation enjoyed by the courts
of this country for impartiality and fairness in hearing and decision were lessened or
undermined in this way ironically by another branch of the system”. The press must
understand the limitations laid
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down on itself and more importantly understand the rationale and logic behind such
restrictions.
With regard to the matters dealing with the ‘media trial’ argument, it was
mentioned that the court would take some steps in the matters before it, which may
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ultimately amount to contempt, and the material must be checked on the touchstone
of fairness and reason. For if this were permitted, persons in a position by their
evidence to assist the court might be prevented from coming forward and persons
appearing as witnesses could be swayed in their testimony38 .
As has already been noted, hat section 3 refers only to cases where the matter is a
sub-judice or pending before the court. This can therefore be claimed that a judicial
action can be said to be pending in the case of a civil proceeding when it is
commenced by filing a complaint and in the case of a criminal proceeding it would be
treated as pending when a charge sheet is filed in court or when a summons or
warrant is issued by the court or when the court has recognized the matter and the
final judgment is awaited. Additionally, in many cases, the majority of the High Courts
and the Supreme Court upheld the clarification annexed to Section 3.
The Supreme Court concluded that a criminal case was opened when the person
was arrested. This decision helped to balance, on the one hand, the freedom of speech
and expression provided for in Article 19(1)(a) (read with Article 19(2)) and, on the
other, the right of the citizen pursuant to Article 21 which guarantees the due process.
Thus the starting point for the pendency can be said to be the arrest of the individual
for a crime. Nevertheless, it is important to note that the judgment of the Supreme
Court came before the Contempt Act of 1971, and hence the finding of the Supreme
Court in the Gopalan case39 hardly mattered as the explanation appended to Section 3
defines pendency quite differently from what was defined by the Supreme Court in the
abovementioned case.
Press liability is higher than that of the citizen since the former has a broader
audience. Press freedom should not be seen as a license to threaten litigants and shut
the door to justice, nor should it include any unrestricted right to damage the integrity
of reputable individuals. Also, the 1971 Contempt of Courts Act needs to be amended
in order to impose broader
Page: 112
powers on the judiciary to combat unruly media40 . The’ media court’ is often
performed without taking into account the admissibility of evidence and the sanctity of
the procedures involved and the extent of the impact it may have on the judges and
prosecutions.
CONCLUSION
Freedom of the press consist of reasonable restrictions for instance related to the
sovereignty and security of the nation, diplomatic relations with other nations, decency
and morality, contempt of court, inter alia. Though India has not paid much attention
to freedom of the press, however,there can be more profound thoughts and more full
dimensions to overcome the flaws in the imposed restrictions to make them
reasonable in the practical sense.
Although the freedom of the press has not gone through many changes, on the
other hand, the judiciary has laid down specific regulations through different landmark
cases.
A lot of factors affect the freedom of the press, among other things, the ownership
of media organisations. At times the editors and journalists are restricted to disclose
the real and honest facts and cannot give their unbiased comments and opinions due
to the biased capitalist owners. Therefore, a complete overhauling and reformation in
the ownership, regulation and control in print media is required to make the Indian
press free. In other words, media houses themselves are the reason for their restricted
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freedom as they keep their interests aligned with the ruling party in India.
The democratic nature of India ensures the utmost enjoyment of rights mentioned
in the Indian Constitution in the most liberal interpretative way possible. Moreover,
one of the significant rights mentioned in Part III of the Indian Constitution is
Freedom of Speech and Expression which impregnates freedom of the press into it.
Therefore, the press can be designated as the fourth estate and an essential pillar of
democracy.
Although there is no separate freedom of press mentioned in the Indian
Constitution, the scope of its freedom is very vast as compared to freedoms available
to individuals. It is broader as it includes the democratic principle of accountability,
and is a strong element of democratic control.
Page: 113
The confined role of the press is a significant reason for increasing corruption,
reducing accountability in the government. These violations require a great deal of
publicity without any concocted version. The cases of weak, deserving individuals, in
case of Human Right violations, should be followed up to the last step until they attain
justice from the court of law. A question which rises is, ‘What are the reasons for this
strange phenomenon?’ Above all, close understanding and ties between media persons
and public-spirited lawyers are most important for proper planning and well-stratified
procedure to be followed in cases of social action litigation in our country41 .
It can be summarised that authenticity and justifiability of freedom of the press will
be fructified only by the determining and defending their rights and protect their
valuable freedom. The rights given to the media should only be to bring real facts
before public and not to pass judgments and deliver justice. They can only report
cases but not adjudicate them. The media can be a means to achieve justice, but it is
not the authority to deliver justice.42
———
* Research Scholar, Institute of Law, Nirma University, Ahmedabad, Gujarat; E.mail : thakar.foram@gmail.com
** Director, Institute of law, Nirma University, Ahmedabad, Gujarat; director.il@nirmauni.ac.in
1
Craven Kenneth, Jonathan Swift and the Millennium of Madness : The Information Age in Swift's A Tale of a
Tub, 1992, University of Groningen Press, Leiden.
2 Devarshi Sen Deka, “Defining the Rule of Law : India's Narrative to the Idea of Justice”, (May 29, 2019, 11 : 45
a.m.) <www.legalservicesindia.com/article/print.php?art_id=217>.link not accessible
3 Article 19 of the Indian Constitution.
4 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
5 Id., p. 126.
6 A. Mazumdar, Indian Press and Freedom Struggle (1937-42), 1993 Edition, p. 37.
7
P.N. Malhan, Liberty of the Press in India, The Indian Journal of Political Science, Vol. 14, No. 1 (January-
March, 1953), pp. 39-49.
8 William Murray, “1st Earl of Mansfield”, PC, SL was a British barrister, politician and judge.
9
Mane Sachin Babruvan, “A Critical Study on Right to Freedom of Speech and Expression and Role of Media in
Indian Democracy”.
10 Vir Bala Aggarwal and V.S. Gupta, Handbook of Journalism and Mass Communication, at p. 168.
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11
Frank Thayer, Legal Control of Press (1962), at pp. 5-7.
12
Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
13
Soli J. Sorabjee, Freedom of the Press, its Contents and Facets, (December 1986), pp. 173-184, e
14
Manual related to Right to Information Act by Raj Pruthi.
15
“Freedom of Media in India : A Weapon to Kill Enemies or Protection Guard for Public-The Two Sides”.
16 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
17 Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294.
18
Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578.
19 Supra note 16.
20 Id., 305.
21
Case analysis, Columbia University, <https://www.globalfreedomofexpression.columbia.edu/cases/sakal-papers
-p-ltd-v-the-union-of-india/>.
22 Harijai Singh, In re, (1996) 6 SCC 466 : AIR 1997 SC 73.
23“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” laid down
under S. 124-A of Penal Code.
24
D. Soren v. State, 1953 SCC OnLine Pat 100 : AIR 1954 Pat 254.
25
Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578.
26
Binod Rao v. Minocher Rustom Masani, 1976 SCC OnLine Bom 100 : (1976) 78 Bom LR 125.
27
Manoj Kumar Sadual, Freedom of Press in Indian Constitution : A Brief Analysis, International Journal of Applied
Research 2015; 1(8) : 194-198.
28 Ibid.
29 Supra note 33.
30
Supra note 30.
31 Supra note 13.
32 M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395.
33
Romesh Thappar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594.
34
Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578
35 Maneka Gandhi v. Union of India, (1978) 1 SCC 248
36
Printers (Mysore) Ltd. v. CTO., (1994) 2 SCC 434 : (1994) 1 SCR 682.
37Phillimore Committee Report quoted in, Asim Pandya, “The Contempt of Court Act 1971 (Law & Procedure),
Snow-white Publication, second edition 2010.
38
Sushil Sharma v. State (Delhi Admn.), 1996 SCC OnLine Del 345 : 1996 Cri LJ 3944.
39
A.K. Gopalan v. Noordeen, (1969) 2 SCC 734.
40 Bijoyananda Patnaik v. Balakrushna Kar, 1953 SCC OnLine Ori 6 : AIR 1953 Ori 249.
41 Supra note 33
42
Rao Harnarain Singh Sheoji Singh v. Gumori Ram, 1958 SCC OnLine P&H 21 : AIR 1958 P&H 273
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Page 1 Monday, June 21, 2021

(2020) 10 GJLDP (October) 102

Freedom of Speech and Expression with Special Reference to Freedom of Press

FREEDOM OF SPEECH AND EXPRESSION WITH SPECIAL REFERENCE TO FREEDOM OF PRESS

19. Protection of rights regarding freedom of speech etc

Therefore, despite having an insurmountable amount of freedom enjoyed by the

viewpoint on the press freedom in India.35 To establish an opinion to engage in a

Concerning the restrictions on freedom of the press, contempt of court is also to be

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