Constitutional Foundation of

Media Freedom
 The strength and importance of media
in a democracy is well recognized.
Article 19(1)(a) of the Indian
Constitution, which gives freedom of
speech and expression includes within
its ambit, freedom of press.
 The existence of a free, independent
and powerful media is the cornerstone
of a democracy, especially of a highly
mixed society like India.
 Media is not only a medium to express
once feelings, opinions and views, but it
is also responsible and instrumental for
building opinions and views on various
topics of regional, national and
international agenda.
 The pivotal role of the media is its
ability to mobilize the thinking process
of millions.
 The criminal justice system in this
country has many lacunae which are
used by the rich and powerful to go
scot-free.
Blackstonian concept of
freedom of press
 1. Liberty of the press is essential to the
state.
 2. No previous restraints should be
placed on the publications.
 3. That does not mean there is press
freedom for doing what is prohibited by
law.
 4. Every freeman has the undoubted
right to lay what sentiment he places
before the public, but if he publishes
what is improper, mischievous or illegal
he must take the consequence of his
own temerity.
 Legal implications arising out of the concept
of 'press freedom' are many and hence they
are not confined to the constitutional
provisions alone.
 The different aspects of it infringe inter alia
on criminal law , law of contempt, Copyright
Act , Official Secrets Act, Freedom of
Information Act, Law of torts, Prevention of
Insults to National Honour Act etc .
Historical Perspective
1895 - Swaraj Bill

This bill envisaged for India a

Constitution guaranteeing to every
citizen, among other freedoms, the
freedom of press.
 Contribution of the first British MNC -
The East India Company.
 The press was always under the control
of the company, but after its press role
reversal the necessity to clamp harsh
curbs became imminent. Repressive
laws were passed and judgments were
given curbing press freedom.
 Founding Fathers of the Indian
Constitution attached great importance
to freedom of speech and expression
and the freedom of the press.
 Nationalist press was bludgeoned by
sedition trials and forfeiture of security
deposits
 They believed that central to the
concept of free press is freedom of
political opinion and at the core of that
freedom lies the right to criticize the
Government.
 According to the constitutional advisor,
Dr. B.N. Rau, it was hardly necessary to
provide for the freedom of the press
specifically, because freedom of
expression would include freedom of
the press
 In a series of decisions from 1950
onwards the Apex court has ruled that
the freedom of press is implicit in the
guarantee of freedom of speech and
expression.
 Consequently freedom of press is one
of the fundamental rights guaranteed
by the Constitution of India
Democratic Right
 Freedom of press is part of freedom of
speech and expression as available to every
citizen, under Constitutional proclamation and
protection
 Preamble mentions ‘Liberty of thought,
expression, belief, faith and worship
 Freedom of expression is practical application
of individual freedom of thought
Collective Right
 Freedom of thought is personal, freedom of
expression is collective, which becomes more
and more expressive

 Life, liberty and pursuit of happiness are

three important objectives of law, democracy
and social life. It was part of Declaration of
American Independence.
Constitutional Right
 It is a right guaranteed by Const. & placed
under Part III as FR.
 It is not legal right, a law has not given thus,
law cannot take it back.
 Even Constituional right can be withdrawn.
But this right cannot be, because it is
fundamental in democracy and part of basic
structure of the Constitution.
 Article 19
 1) All citizens shall have the right
 a) to freedom of speech and expression
 b) to assemble peacefully and without arms
 c) to form associations or unions
 d) to move freely throughout the territory
 e) to reside and settle in any part of territory
 g) to practise any profession, carry on any
occupation, trade or business.
Restrictions
 (2) State can make law to impose reasonable
restrictions in the interests of
 Sovereignty and integrity of India
 Security of State
 Friendly Relations with foreign States
 Public Order, Decency or morality,
 Contempt of Court, Defamation, Incitement
to an offence.
Other Constitutions
 First and 14th Amendments to US:
Congress shall make no law...abridging
the freedom of speech or press,
religion, assembly, petition for redress
of grievance
Common Law of England

 Common Law of England

 English law has traditionally taken little or no
notice of freedom of speech.' A right to free
speech (or expression) was not generally
recognized by the common law, unlike, for
example, the rights to property and
reputation, which are strongly protected,
respectively, by the laws of trespass and
libel.
Section 40(6)(1) of Const of
Eire 1937
 The State guarantees liberty for the
exercise of the following rights, subject
to public order and morality: –
 The right of the citizens to express
freely their convictions and opinions.
 The education of public opinion being,
however, a matter of such grave import to
the common good, the State shall endeavour
to ensure that organs of public opinion, such
as the radio, the press, the cinema, while
preserving their rightful liberty of expression,
including criticism of Government policy, shall
not be used to undermine public order or
morality or the authority of the State.
 The publication or utterance of
seditious or indecent matter is an
offence which shall be punishable in
accordance with law.
Section 18(1)(e)(f)(g):
Srilanka Const.1972
 (e) every citizen has the right by himself
or in association with others, to enjoy
and promote his own culture;
 (f) all citizens have the right to freedom
of peaceful assembly and of association;
 (g) every citizen shall have the right to
freedom of speech and expression,
including publication;
Article 50 & 51 of USSR Const 1977

 Article 50. In accordance with the

interests of the people and in order to
strengthen and develop the socialist
system, citizens of the USSR are
guaranteed freedom of speech, of the
press, and of assembly, meetings,
street processions and demonstrations.
 Exercise of these political freedoms is
ensured by putting public buildings,
streets and squares at the disposal of
the working people and their
organisations, by broad dissemination
of information, and by the opportunity
to use the press, television, and radio.
 Article 51. In accordance with the
aims of building communism, citizens of
the USSR have the right to associate in
public organisations that promote their
political activity and initiative and
satisfaction of their various interests.
International Conventions
 Art. 13, 19, 20, 23, 29 of UDHR 1948
 Art 22 of International Covenant of Civil
and Political Rights 1966
 Art. 10 of the European Convention on
Human Rights, 1950
 Art 6,12 of International Covenant on
Economic, Social and Cultural Rights,
1966
Meaning
 Article 10 of ECHR provides that
Everyone has the right to freedom of
expression. This right shall include
 freedom to hold opinion and
 to receive and impart information and
ideas without interference by the public
authority regardless of the frontiers.
Amendments to Art 19
 First Amendment 1951
 Sixteenth Amendment 1963
 Forty-fourth Amendment, 1978
 Civil Liberties are Fundamental rights
provided under Art 19, 21, and 22
 Deprivation of Personal Liberty is
violation of Article 21 and 22.
Personal Liberty
 Art 19 deal with important attributes of
personal liberty, life and personal liberty are
sought to be protected under Art 21, which
include varieties of rights.
 Other legal rights which may be on par with
civil rights are: right to strike, freedom of
contract, right to franchise and right to
contest for legislative election.
Citizens and persons
 Rights under Art 19(1) are basic and
available only for citizens and not all
persons, thus foreigners are excluded
 Citizen gets legal capacity to exercise
the rights, entitled to enjoy. State is
restricted to exercise its authority in
making law or taking any action curbing
these freedoms unreasonably.
Meaning
 right to express one’s own convictions and
opinions freely without any interference from
any authority or person
 Right to receive and express ideas and
information and the secrecy of the private
communication (Halsbury’s Laws of England)
 Usha Uthup v West Bengal. 1984
Purpose
 Helps an individual to attain self fulfillment
 Assists in the discovery of truth
 Strengthens capacity of an individual in
participating in decision making process
 Provides mechanism by which it is possible to
establish a reasonable balance between
stability and social change.

Need of Democracy
To take part in all matters of governing and all
spheres of life
 Governed need to form a wise and intelligent
judgment and create an enlightened public
opinion
 Public discussion assumes the nature of public
duty. In democracy it is not individual right
but right of community to hear and informed.
Freedom of Media

is not higher than ordinary citizen

guarantees absence of interference
independent editorial authority
contents of newspaper are left to choice of editor. FoP does
not exist where Govt dictates its views to newspapers.
Freedom lies both in content, circulation & equitable
distribution of newsprint.
Public Discussion
 Himmatlal K Shah v Commissioner of Police,
1973 SC case: Bombay Police Act 1951 is
challenged. Refusal to hold public meeting in
public park held against Art 19. Public
processions are prima facie legal.
 F of Expression and assembly are essential
elements of democratic system. Right to meet
face to face with others for discussion
Bandh & Expression Right
 Bandh is expression of protest, but forced
enforcement bandh is violation of other’s
right or expression and business.
 CPM v.UoI AIR1998 SC 184, Bandh or Hartal
violate the Art. 19. FRs of citizens as a whole
cannot be subservient to the claim of FR of
an individual.
Express Case 1986
 Notice of re-entry upon forfeiture of
lease and threatened demolition of
building- Held to be threat to silence
the press, violation of 19(1)(a) &14.
 Right to Reply LIC v Manubhai D Shah,
Yogakshema, 1986 SC 515, right to
propagate one’s view and to answer
criticism leveled against his view.
Beyond Genocide
 A trust produced documentary on Bhopal,
which won Golden Lotus, DD refused to
telecast, as it contains criticism of Govt. Not
valid under 19(1)(a) Film maker has a FR to
exhibit his film, onus lies on party which
claims that it was entitled to refuse under
19(2). Any attempt to stifle, suffocate or gag
this right would sound a death knell to
democracy.
Maneka Gandhi
 No geographical limitation on FoS, it carries
with it right to gather information as also to
speak and express oneself at home and
abroad and to exchange ideas with others not
only in India but also outside. If the direct or
indirect consequence of canceling passport is
to abridge FoS, not valid. But to travel
abroad cannot be claimed as an integral right
of FoS. 1978
National Anthem Case
 1986 3 SCC 615 Right of Jehova Witnesses
not to take part in singing National Anthem is
not insult and part of FoSE. Circular of
Director public instruction held violation of
19(1)(a)
 Romesh Thapper, Cross roads case,
Brijbhushan Organiser Limiting FoSE to
prevent prejudicial activity not valid. Public
Order is added as ground for restrictions.
Newspapers Price Page Act
 Daily Newspaper Price and Page Order
1960, fixing minimum number of pages,
ad news ratio. It will affect circulation
so violative of Art 19. Sakal Papers Pvt
Limited v UoI 1962 SC 305
 Bennet Coleman v UoI 1973 SC 106
Paper was asked to reduce the space
for ads. Held not valid.
Advertisements & 19(1)(a)
 Right to Govt Ads: equitable distribution
of ad revenue as per norms. Art 14
 Govt cannot deny Ads because it was
criticised- Art 19. Dainik Samband v
State of Tripura, 1989, Ushodaya, 1981,
Gulam Nabi v J&K 1990
 Mian Bashir v Jammu & Kashmir 1982,
J&K26. Privileges of rights under 105
Restriction on Ads
 Ads to promote drugs can be restricted-
Hamdard Dawakhana v UoI 1960 SC 554
 Ad involves commercial element, thus to be
guided by noble restrictions. All ads does not
relate to FoS E of ideas.
 Yellow Pages Case, 1995 (5) SCC 139:
commercial ad is also part of FoSE, no
exclusive right to publish Tele directory.
Electronic Media
 Honi Anhoni, was restrained as it spreads
false beliefs superstition. No material to show
that serial was prejudicial, not valid. Odyssy
Communications case1988 SC 1642
 Restrictions on Tamas: Not valid Romesh v
UOI 1988 SC 775
 Hero Cup Case: Govt has no monopoly of
airwaves. Right to telecast imp event. 1995
(2) SCC 161
Films
 Censorship justified in KAAbbas v UoI 1971
SC 481. Classifying as A and U valid
 Bandit Queen case, Bobby Art International v
Om Pal Singh Hoon Case, 1996(4) SCC1
Issuance of A certificate was held valid. Film
has to be judged in its entirety. Nude scenes,
arousing a sense of revulsion against
perpetrators and pity for victim permitted.
Reasonable Restrictions
 Security of State- serious and aggravated
form of public disorder. Speeches and
expressions which encourage violent crimes
are considered to be related to security of
state
 Public Order- state of tranquility which
prevails amongst the members of society as a
result of internal regulations enforced.
Public disorder
 Section 124 A of IPC:SC held that the activity
would be rendered penal when it is intended
to create disorder (State of Bihar v Shailabala
1952 SC 329) Not mere criticism of Govt
action. Official Secrets Act is in force in the
name of security of state.
 Incitement to offence, insult to religion,
Section 144 CrPC Babulal Parate 1971 SC
Contempt of Court
 CoC Act 1973, Section 228 IPC makes
CoC punishable. Art 129 empowers SC
to administer CoC powers. Reasonable
Restriction over 19(1)(a).
 Friendly Relations with Foreign States-
for protection: Not through executive or
departmental instructions, only by
legislative restrictions.
Defamation
 Right to Reputation as read into Art 21.
 Section 499 & 500 IPC
 Decency & Morality: no writing should
deprave morals of youth, no expression
should promote indecent ideas and
activities. Hicklin Test Ranjit Udeshi,
Section 292 of IPC obscene Lady
Chatterley’s Lover SC upheld conviction.
Privacy
 Most invaluable human right, right to be let
alone to protect one’s inviolable personality
Intrusion of privacy threatens liberty, it is an
offence to personal dignity, outraging the
modesty of a woman 324 IPC. Insult to
modesty 505 IPC.
 Autoshankar Case Rajgopalan v TN1995 SC
264, autobiography of condemned man
Telephone Taping
 PUCL v UoI 1997 SC 568 there should be just
and reasonable procedure for regulating the
exercise of power under Indian Telegraph Act
1885 Section 5(2), to safeguard rights of
people under 21 and 19
 Tapping violates 19 if fair procedure is not
adopted. It may be violation of privacy also.
 Interview of prisoners
 Press can interview prisoners, but require
to seek consent of prisoner and permission
from authorities as per Jail Manual (Smt
Prabha 1982 SC 6) For interview of under-
trial prisoner, court has to permit, journalist
has to do it as per the restrictions and
regulations as per jail manual
 Press has no unfettered right to interview.
(Charulata Joshi, 1999 SC 1379)
Section 295 A of IPC
 Deliberate and malicious insult or attempt to
insult or to outraging the religious feelings,
disrupt the public order, to punish it under
295 is valid under 19(2) (Ramjilal Modi v
State UP 1957 SC 620)
 Promotion of disharmony or ill will between
two groups 153A IPC, religious appeal with
prejudicial effect-offence u/s 123(3A) RPA
Babulal v Maha 1961 SC 884
 Prohibitive orders can be given by DM u/s
144, to prevent disorders, obstruction and
annoyance and the Magistrate has to act
judicially, the orders are temporary in nature
to meet emergency situations.DM could be
the judge of situation.
 Life of this order cannot be extended beyond
2 months, if so, it is unconstitutional
Liberty is not licence to
anarchy
 Justice Jackson: it is not choice between
order and liberty, but it is between liberty
with order and anarchy without either.
 He pleaded for little practical wisdom in
extending doctrine of clear and present
danger test, if not bill of rights convert into a
suicide pact. (Teminiello v Chicago 337 US 1)
Flag case in US
 Minersville School Dist v Gobitis 310 US 586,
US SC upheld the requirement of participation
by the school students in flag saluting
ceremony and Jehovah witnesses are not
exempted from mandatory requirement on
grounds of violating religious belief.
 Display of red flag as protest is protected
(Stromberg v California 283 US 359)
Burning Flag
 Street v New York 1969 US, street burned 48
star flag of US uttering some contemptuous
words against flag as a protest against killing
of James Meredith in Mississipi. SC reversed
conviction of Street for words. Though
punished for burning, his words are
protected.
 Thornhill v Alabama,1940 310 US 88 peaceful
picketing is Constitutional.
First Amendment
 After Crossroads (affecting public order) &
Organiser(disturbing friendly neighbours), In
re Bharati Press (writing inciting an offence)
cases, first amendment was brought in 1951
to include three grounds
 1) public order,
 2)friendly relations with foreign
countries
 3) incitement to an offence
 Preventive Injunction
 Reliance Petrochemical Ltd v Indian Express
1989 SC 190: WPs filed challenging Secured
Convertible Debentures of RP, SC allowed
issue to be proceeded with. Interim
injunction against Express from writing
against, E moved for vacation, court has to
balance free press and fair trial. (CJ
Sabyasachi said right to know is essential
under Art 21)
Press v Parliament
 MSM Sharma v Sri Krishna Sinha 1959 SC
395. Parliament can prohibit publication of
any report in press. 19 is subject to 194(3)
 In re Special Reference1965 SC 745 Kehar
sing punished by speaker for pamphlet
distribution in assembly. Filed WP. LA ordered
arrest of judges, advocate and K, 28 JJ
stayed it. LA ordered JJ to appear.
Reporting Legislature
 Parliamentary Proceedings (Protection of
Publications) Act, 1956, It was repealed in
Emergency.
 Article 361A added in 1978 to protect publication
of proceedings if substantially true, without
malice. Immunity from court proceedings also
extend to media, electronic and news agency
also. Applicable to Legislative reporting also.
Secret session cannot be reported.
 TV: Indira Jaising
 Indira Jaising v UoI 1989 Bom 28
Petitioner was interviewed on Muslim
Women (Right to Protection on Divorce)
Bill, but was not telecast. Held- Violation
of 19.
 Universal Communication System Case,
1995 AlHC 6398 Hindalco 1966 all 199
entertainment tax levied on Cable TV
Network, valid.
Right to Use Loudspeaker
 K. Venu v DGP 1990 Ker 344 There is
no fundamental right to use
loudspeaker. Sound pollution and
indiscriminate use can be regulated.
Venu was denied mandamus.
 DA Prabhu v State of Ker1975 Ker 117
total restriction on use of loudspeaker is
against 19.
Compelled Speech
 (Motion Picture Association 1999 SC
2324) Direction to exhibit news current
events does not violate 19.
 Statutory obligation that any food
product must carry on its package list of
ingredients used in its preparation,
weight, mrp etc, obligation to publish
statutory warning on cigarette -valid.
Right to broadcast

 The concept speech and expression has

evalued with the progress of technology
and encompasses all available means of
expression and communication.

 This would include the electronic and

the broadcast media.
 Odyssey Communications (P) Ltd .v.
Lokvidayan Sanghatana AIR 1988
 The Supreme Court held that the right
of a citizen to exhibit films on the State
channel – Doordarshan is part of the
fundamental right guaranteed under
Article 19(1)(a).
 The court held that this right was
similar to the right of a citizen to
publish his views through any other
media such as newspapers, magazines,
advertisements, hoardings and so on.
Facts:
 In this case, the petitioners challenged
the exhibition on Doordarshan of a
serial titled Honi Anhonion the ground
that it encouraged superstitious and
blind faith amongst viewers.
 The petition was dismissed as the
petitioner failed to show evidence of
prejudice to the public.
Ramesh v. Union of India,
1988
 A petition was filed to restrain the
screening of the film serial TAMAS on
the ground that it violates Article 21
and 25 of Indian Constitution and
Section 5B of the Cinematograph Act,
1952.
 The film was based on the novel of
Bhisma Sahni, which depicted the event
in Lahore immediately before the
partition of the country.
 Two judges of the Bombay High Court
saw the film and rejected the
contention that it has propagated the
cult of violence. 
 The Supreme Court agreed with the
High Court and emphasized the need to
encourage the telecasting of the film in
television as it is a powerful medium.
 Bobby Art internationalv.Om Pal Singh
Hoon, 1996
 The Supreme Court drew a distinction
between nudity and obscenity.
 The petition was filed by a member of
the Gujjar Community seeking to
restrain the exhibition of the film
“Bandit Queen” on the ground that the
depiction in the film was abhorrent and
unconscionable and a slur on the
womanhood of India.
 The Supreme Court rejected the
petitioner’s contention that the scenes
depicted were indecent with in Article
19(2) and Section 5-B of the
Cinematograph Act, 1952
 Held that the object of showing the
nudity scenes were not to arouse prurient
feeling but revulsion for the perpetrators.
Right to criticize
S. Rangarajan v. P. Jagjivan Ram,
1989
It is appropriate to form and convey an
opinion in a manner which does not cause
defamation to the other individual to whom
such critique is addressed and is secured
under the freedom of speech and expression.