Freedom of the Press

Table of Contents
 Introduction
o What is Freedom of Press?
o Why Freedom of the Press?
 Article 19 and Freedom of Press
o Scope of Freedom of Press under Article 19(1)(a)
 Freedom to spread information
 Freedom to criticize
 Freedom to receive the information
 Freedom to conduct interview
 Freedom to report court proceedings
 Freedom to attend and report legislative proceedings
 Freedom to act as an advertising platform
 Freedom to broadcast
 Reasonable Limitations of Press’ Freedom
o Sovereignty and integrity of the state
o Security of the state
o Public Order
o Decency or morality
o Contempt of Court
o Defamation
o Friendly relations with Foreign states.
o Incitement to an offence
 Conclusion

1.Introduction
In the world’s largest democracy, the freedom of speech and expression is the most crucial
fundamental right availed to the citizens by the constitution. The media is considered as the
fourth pillar of democracy and it plays a vital role in a country’s social, political, economical
and international affairs. Thus, it goes without saying that free press is a sine qua non for a
democracy to survive and thrive and preserve the ethos of good and transparent
governance.

In the past, India has witnessed the rise of political parties (Modi government), falling of the
governments (Rajiv Gandhi’s government), crashing of the economy(2008 crisis) and stock
markets getting skyrocketed (bullish Indian stock market after US-China Trade war), all
based on the information broadcasted regarding them by the media. A country’s
international reputation and the global impression are largely influenced by the kind of
news which prevails about that particular country in the international press.

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 1.1. What is Freedom of Press?

Freedom of the press refers to the minimal interference of the state in the operation of
press on any form of communication including, print (newspapers, magazines, journals,
reports); audio (radios, podcasts); video (news channels, OTT platforms like YouTube) and
over other electronic mediums like news apps, social media feeds, etc.

The liberty of the press in the words of Lord Mansfield is, “consists of printing without any
license subject to the consequences of law”. Therefore, we can conclude that freedom of
the press refers to having the freedom to express what one pleases without any prior
permission from law.

1.2. Why Freedom of the Press?

As per Indian Newspapers v Union of India, the objective of the press is to supplement the
public interest by printing the facts and opinions without which the citizens of the country
cannot make well informed rational judgments. Freedom of the press is in the crux of social
and political inter-course. It is the paramount duty of the judiciary to prop the freedom of
the press and refute all laws and executive actions that interfere with it as opposed to the
constitutional provisions.

Press is a medium of availing knowledge and spreading the vital information of events,
developments, incidents of national interest to the whole nation and thus free and fair
operation of the press makes the backbone of civil society which is capable of critical and
independent thinking and forms its opinion about the country and the government after
scrutinizing the facts of the situation wisely.

2.Article 19 and Freedom of Press

Freedom of the press is implicit under Article 19(1)(a) of the Indian Constitution, which
provides for the freedom of speech and expression under Part III (fundamental rights). It
does not explicitly provide the term “freedom of the press” anywhere but it becomes quite
clear from this Constituent assembly debate when Dr Bhim Rao Ambedkar replies to a
question of “Article 19 not including ‘freedom of the press’” saying that the press is just
another method of quoting an individual citizen and when anyone chooses to write in a
newspaper, they are merely exercising their right of expression and thus, there is absolutely
no need to separately mentions the freedom of the press.

2.1. Scope of Freedom of Press under Article 19(1)(a)

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 2.1.1. Freedom to spread information
Without this liberty, freedom of the press is nugatory. Though this right is also implicit in
the freedom of expression, Romesh Thapar v State of Madras makes it explicit. The
mainline of difference between the freedom of the press and freedom of expression for an
individual is that an individual can’t communicate to masses on his own, but a press can by
means of its publications on various mediums like print, broadcasts, electronic, etc. Thus,
freedom to spread information is an intrinsic part of freedom of the press.

2.1.2. Freedom to criticize

The press, just like individuals have the liberty to criticize the government, its officials, its
policies, its actions, its laws, its statements, etc. However, the press cannot take abuse this
right and cannot provoke the public against the government or cannot abet riots, rebels,
or mutiny or insecurity of the state or the government.

2.1.3. Freedom to receive the information

Again, the heart of the liberty to press. If the press is not equipped with the information, it
cannot empower the public with the knowledge and thus, the right of expression will
become futile because there will be no access to information on whose basis anything can
be expressed.

2.1.4. Freedom to conduct interview

This right is necessary to bring in first hand knowledge from the experts on the particulars
subjects and to enlighten the society at large. Though this right is not absolute, there are
three caveats to it as follow:

1. Interview will only take place on the consent of the interviewee;

2. Interview shall stop when the interviewee wants to it to be;
3. Interviewer can’t force interviewee to answer any question against his/her will.

2.1.5. Freedom to report court proceedings

In the words of Jeremy Bentham, “the soul of justice is publicity”. In Sahara India Real
Estate Corpn ltd v SEBI, SC held that it is the right of the media to report the judicial
proceedings. In Saroj Iyer v Maharashtra Medical (Council) of Indian Medicine, SC held that
the right to print faithful reports of the legal proceedings witnessed is available even if it is
against quasi-judicial tribunals.

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 2.1.6. Freedom to attend and report legislative proceedings
Article 361 of the Constitution equips us with the right of publishing a kosher report of the
parliamentary proceedings. The only limitation of this freedom is that there should be no
mala fide intention behind such publications. When the right of reporting of legislative
proceedings which is implicitly envisaged in the right of expression (A.19) is in discord with
parliamentary privileges (A.105 and A. 194), the right of speech and expression shall
overshadow the parliamentary privileges. Today it is mandatory to do live telecast of the
parliamentary proceedings.

2.1.7. Freedom to act as an advertising platform

We know that the major income of most of the presses comes from the advertisement,
whether it is a radio, or news channel, or mobile application, or newspaper. It was
after Tata Press v Mahanagar Telephone Nigam that SC incorporated the right to
advertisement as a part of the right to freedom of expression.

2.1.8. Freedom to broadcast

In the modern age of technology, power to broadcast is essential as it is one of the major
channels to spread information. This right not only includes broadcasting on news channels,
radios, but also on the internet like websites, blogs, mobile applications. We have
witnessed some of the most reliable journalism on these platforms like Alt News, ThePrint,
TheWire, Quint, etc.

3.Reasonable Limitations of Press’ Freedom

We know that unrestricted freedom, that is, liberty without any reasonable restrictions on
it always hampers the very purpose of granting that freedom in the first place, that is to
empower the individuals as it backfires and makes the rights of individual collapse with one
another. As freedom of press derives its powers from Article 19(1)(a), it is also subject to
the reasonable limitations imposed on A.19(1)(a) under A19(2) which are explained as
follow:

3.1. Sovereignty and integrity of the state

It was inserted by an amendment to control the extreme reactions of the people, who were
protesting for separate entities of the different regions of India. Any form of speech or any
expression which hampers the sovereignty or integrity of the state would be covered under
this restriction. The right of freedom to speech and expression can’t be allowed to be used
as a weapon against the sovereignty or integrity of the state.

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At this juncture, it is essential to take cognisance of the fact that ‘sedition’ is no ground to
impose reasonable restrictions as envisaged under Article 19(2) of the Constitution.

3.2. Security of the state

The freedom of expression cannot be exercised in a way so that it becomes a threat to the
security of the state in any manner. Any communication which incites the people to cause
social unrest, rebels, violence, riots, etc against the state and its subjects would be covered
under this restriction.

In State of Bihar v Shailabala Devi, SC held that the speeches made by any person (citizen or
non-citizen) which encourage the people to commit offences like dacoity, murder, robbery,
etc is without a doubt a threat to the security of the state. Hence such a speech will be
considered as a prejudice towards the sovereignty or integrity of the state, and the order to
stop or curtail such communication is covered under reasonable restrictions of A.19(2).

3.3. Public Order

This term was inserted by the Constitutional (First Amendment) Act, 1951. This clause was
added to curtail the effects of Romesh Thappar v State of Madras where the SC had held
that the right to circulation is an intrinsic organ of Right to freedom of expression.

The term “public order” has a broad meaning and covers a multitude of actions which may
endanger the security of the state. In Madhu Limaye v Sub Divisional
Magistrate Monghyr SC held that the term “public order” can be construed as “no
insurrections or riots or disturbance to public peace.”

In Ramji Lal Modi v State of UP the constitutionality of the Section 295A of the Indian Penal
Code (IPC) was being questioned. The argument advanced was that the mentioned section
infringes the Right to Freedom of Speech and Expression guaranteed under Part III in Article
19(1)(a) under the Constitution. The petitioner, who was the printer, publisher and the
editor was held guilty of offences under Section 295A of the IPC. Further, it was contended
that this section has no protection under the reasonable restrictions of A.19(2) of the
constitution. The SC dismissed this argument and held that if an individual by exercising
his/her right the freedom of expression causes public disorder, then he or she can be
prosecuted under the mentioned section which comes within the purview of reasonable
restrictions.

3.4. Decency or morality

For preserving the decency or morality in the country, the state has the authority to limit
the freedom of speech and expression of an individual. Further elaboration of this ground is
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reflected in Sections 292 to 294 of the IPC. The mentioned sections list downs some acts as
crime such as selling obscene publications to young individuals, making indecent gestures in
Public places etc. In Ranjit Udeshi v State of Maharashtra SC held that the S. 292 of IPC is
constitutional as it prohibits obscenity in public places and promulgates public decency and
morality. It was further supplemented in Chandrakant Kalyandas Kakodkar v State of
Maharashtra by SC that while tackling the question of decency and morality, the court has
to consider the proposition as to whether or not the indecent or immoral acts were
sufficient to pollute the mind of the young individuals or is there a possibility that their
minds would become depraved.

3.5. Contempt of Court

There is no doubt that freedom of speech and expression is very crucial for societal
development, but on the other hand, providing and maintaining justice and equity is also
equally substantial. Though, the freedom of speech and expression reckons but it can’t be
wielded to cancel out courts’ actions of justice.

The SC under Article 129 & the HCs under Article 215 of the constitution is empowered to
take punitive actions for contempt of court. It was further held in C.K. Daphtary v O.P.
Gupta it was held that the S.228 of IPC and A.129 of the constitution are valid and are
covered within the purview of reasonable restrictions enshrined in Article 19(2) of the
constitution. Thus,we can infer from the above discussion that the freedom of speech and
expression is prone to Articles 19(2), 129, and 215 of the constitution.

3.6. Defamation
Article 19(1)(a) in no manner gives a license to cause damage to the reputation of a person
in the name of freedom of speech and expression. Causing damage to an individual’s
reputation is considered as defamation and is a stringent limitation to the right of freedom
of speech and expression.

No one is allowed to expose a person to hate, ridicule or contempt by means of any

expression, signs or gestures. Defamation is considered as a very stringent act and
therefore it is prohibited by the Civil Laws of Torts.Also, it is an offence under S. 499 of the
IPC. As something is enshrined as wrong under two statutes, it is obvious that it has a
defence under reasonable restrictions of Article 19(2) of the Constitution.

3.7. Friendly relations with Foreign states.

Just like with the term “public order”, this ground was also inserted in Article 19(2) of the
Constitution via Constitution (First Amendment) Act, 1951. This main objective of
incorporating this restriction was to counter the antagonistic and mala fide propaganda
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against any foreign country which may have friendly connections with the Republic of
India.

Such activities can jeopardize the government’s efforts to promulgate and maintain friendly
relations with foreign nations and bring lucrative results out of those results for India.
In Jagan Nath v Union of India, SC held that all commonwealth countries are foreign
countries for the purpose of Article 19 (2). However, another fact to take cognisance of is
that, members of the commonwealth countries including Pakistan aren’t the members of
foreign states for the purpose of the Indian constitution.

3.8. Incitement to an offence

As per the criminal jurisprudence, the act of incitement or abetment to an offence is a
distinct and independent offence per se. Exercising the freedom of speech and expression
to incite an offence would be considered as a threat to the public order.

Just like the terms “public order” and “friendly relations with foreign states”, this ground of
reasonable restriction was incorporated in the constitution via the Constitution (First
Amendment) Act, 1951. In State of Bihar v Shailabala Devi, it was held by SC that any
communication which leads to incitement of any criminal act can be restricted and any
order for such ban will fall within the purview of reasonable restrictions envisaged in Article
19(2) of constitution.

The above mentioned seven grounds of reasonable restrictions act as a line in the sand for
the demarcation of the right to freedom of speech and expression which also includes the
right to freedom of press. So, one can infer that the right to free press prevails within the
boundaries of reasonable restrictions enshrined in Article 19(2) of the constitution.

4.Conclusion
Currently, India’s rank in the World Press Freedom Index by Reporters Without Borders is
140th amongst 180 countries. This rank has taken some serious declines in the last decade
from 133 to 136 in 2017; 136 to 138 in 2018; 138 to 140 in 2019. This dip is due to the
beating, prosecution and even deaths of journalists on the line of work. We often see
videos of journalists getting lynched and being publicly beaten for trying to expose
politicians or government officials. This shows some serious concern pertaining to the
freedom given to press in the country with the world’s biggest Constitution and
bureaucratic setup.

Press is supposed to be the voice of the public to the government, but in modern times, a
contrast to this can be observed, where some of the major mainstream media houses are
marketing the politicals parties while criticizing the oppositions parties and not discussing
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the relevant issues like public welfare, corruption, analysis of government schemes, etc.
Though it is also true that forums like WhatsApp, YouTube, and Facebook which are totally
independent are have become prone to fake news leading to mob lynching, fear-
mongering, hate speech, propaganda spreading and indecency promoting, which highlights
the need of some reasonable restrictions of the press.

Though, without a shred of doubt, for preserving democracy and not promoting informed
citizenry in the nation, we have to give reasonable freedom to the press. The present
government has tried to curb this freedom by amending RTI Act, Whistleblower Act, and
proposing the Sedition Act in the parliament which in the opinion of the author goes
against the basic tenets of the constitution of tearing apart the very fabric of democracy.

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