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Freedom of Press

Written by: Madan Singh Choudhary Designation: Students (5 years LL.B.) Institution: Gujarat National Law University, Gandhinagar
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Freedom of expression in particular, freedom of the press guarantees popular participation in the decision and actions of government, and popular participation is the essence of our democracy - Corazon Aquino

The right to freedom of expression is probably the most universally accepted human right.[1]The freedom of the press is considered to be the most important right which must be protected in a democratic society. This freedom can only be available in a society where there is a right to free speech and expression. Similarly, the freedom of information can be enjoyed only if there are sources from which information can flow. These sources, again, would be available where there is a right to speech and expression. The freedom of expression and the freedom to receive and impart information are corollary of one another. In fact, there is an overlap between the freedom of expression and the freedom to receive or impart information. The freedom to impart information can be considered as an expression of an opinion, of the informant or of a third person.

The seeking of information, on the other hand, precedes the formation of an opinion by the person who seeks the information, and consequently also its expression. But with regard to the press, freedom of expression and information run parallel to each other. While the press might be the medium of expression, someone else might possess the information. Until and unless these two freedoms are exercised together both would be useless. In the case of information the only one who has the right of free distribution of that information is the party who is the author, originator or otherwise the intellectual owner of the information in question. In case of the press, however, the press can express opinions of others also, of course, held in good faith and believed to be true.

It is incumbent on the press, with regard to the print media as well as audio-visual media, to impart information and ideas which the public has the right to receive. Otherwise, the press would not be able to play its role of ‘public watch dog’. Freedom of press is conferred on by virtue of article 19 (1) (a). This constitutional provision is getting obsolete in the newly evolved scenario and therefore it needs to be revised. Thus for exercising the freedom of expression one must have the freedom of information. In this regard, the approval of the Freedom of Information Bill, 2000 (Information Bill) by Indian Parliament would be a welcome move.

II. Background
II.1. Developments in UK
Historically, restriction of the press has occurred in two ways. The first may be either censorship or mandatory licensing by the government in advance of publication; the second is punishment for printed material, especially that considered by the government to be seditious libel, i.e., material that may excite disaffection against constituted authority. Censorship of the press began not long after the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to submit copy to church authorities before publication, in order to prevent heresy. Penalties for bypassing the censors included fines and excommunication. Stronger restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to be applied more to political criticism than religious heresy. John Milton in his Areopagitica (1644) attacked the licensing law and called on Parliament to suppress offensive publications after their appearance if necessary. Milton's objections to prior restraint eventually became a cornerstone of press freedom, but it was not until 1695 that the licensing and censorship laws were abolished. Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government.

II.2. Developments in USA
The defense of John Peter Zenger against libel charges in 1735 is often seen as the cornerstone of American press freedom. After the American Revolution, several states provided for freedom of the press, and the First Amendment (1791) to the U.S. Constitution declared that Congress shall make no law abridging the freedom of speech or of the press.” Wartime situations often present challenges to the legal limits of press freedom. In 1931, the Supreme Court, in Near v. Minnesota[2], for the first time declared almost all forms of prior restraint to be unconstitutional. The only recognized grounds for prior restraint, national security, was tested in 1971 when Daniel ellsberg, a former government employee who believed that information that should be made public was being withheld by the government, released the , pentagon paper a collection of classified government documents concerning the Vietnam War. The government tried to block their publication, but the U.S. Supreme Court, in New York Times Co. v. United States [3] permitted their release. The U.S. Supreme Court has recognized no unrestricted right of press confidentiality.

II.3. Indian perspective
Press laws in India have a long history and are deeply rooted in the country’s colonial experience under British rule. The earliest regulatory measures can be traced back to 1799 when Lord Wellesley promulgated the Press Regulations, which had the effect of imposing pre-censorship on an infant newspaper publishing industry. The onset of 1835 saw the promulgation of the Press Act, which undid most of, the repressive features of earlier legislations on the subject. Thereafter on 18th June 1857, the government passed the ‘Gagging Act’, which among various other things introduced compulsory licensing for the owning or running of printing presses.

Then followed the ‘Press and Registration of Books Act’ in 1867 and which continues to remain in force till date. Governor General Lord Lytton promulgated the ‘Vernacular Press Act’ of 1878 allowing the government to clamp down on the publication of writings deemed seditious and to impose punitive sanctions on printers and publishers who failed to fall in line. In 1908, Lord Minto promulgated the ‘Newspapers (Incitement to Offences) Act, 1908 which authorized local authorities to take action against the editor of any newspaper that published matter deemed to constitute an incitement to rebellion.

However, the most significant day in the history of press Regulations was the 26th of January 1950the day on which the Constitution was brought into force. The colonial experience of the Indians made them realise the crucial significance of the ‘Freedom of Press’. Such freedom was therefore incorporated in the Constitution; to empower the Press to disseminate knowledge to the masses and the Constituent Assembly thus, decided to safeguard this ‘Freedom of Press’ as a fundamental right. Although, the Indian Constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1) (a).[4] It is however pertinent to mention that, such freedom is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public. It is necessary to mention here that, this freedom under Article 19(1)(a) is not only cribbed, cabined and confined to newspapers and periodicals but also includes pamphlets, leaflets, handbills, circulars and every sort of publication which affords a vehicle of information and opinion.[5]

III. Role of UNO

In 1989, after the end of the Cold War, UNESCO further strengthened its commitments to freedom of the press. To this end, UNESCO organized in all regions of the world a series of seminars on freedom of the press, independent and pluralistic media which led to the adoption of key reference texts. These texts were subsequently endorsed by all Member States. Since the adoption of the New Communication Strategy by the General Conference in 1989, UNESCO has contributed to a wider recognition and public awareness of the importance of freedom of expression and freedom of information as a fundamental human right.

IV. Scope And Limitation of Freedom of Press

Article 19(1) (a) of the Indian Constitution states simply that ‘all citizens shall have the right to freedom of speech and expression’. The companion Article, Article 19(2) qualifies this right by providing that the State can impose reasonable restriction on its exercise ‘in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence’. Article 19(1)(a) does not refer specifically to the freedom of the press as does, say, the corresponding provision in the American Constitution, but judicial decisions have repeatedly affirmed that the Article is sufficiently wide to include the freedom of the press and, by extension, the freedom of other mass media.[6]

In Romesh Thapar’s Case and in several subsequent cases strict and narrow limits have been placed on the Legislative powers to abridge the right conferred by Article 19(1) (a). Any restriction on Article 19(1) (a) can only be valid if three conditions are met: - It is supported by the authority of law; The law in question is related to one or more of the permitted heads of restrictions laid down under Article 19(2); and the restriction is reasonable. It is also necessary that the procedure and the manner in which the restriction is imposed be just, fair and reasonable.[7]

Although the constitutional validity of censorship itself has not been subject to any judicial decision (except in relation to cinematograph films), the overwhelming weight of judicial opinion has on the whole, been against interference with the freedom of the press through the instrumentality of censorship. This is illustrated by a catena of decisions handed down during 1975-76 state of emergency, when for the first time in the history of independent India, a censorship order of sweeping character was issued, requiring editors and publishers to submit all material intended for publication to an officially designated officer Censor” for clearance before publication.

The Bombay High Court came down heavily on the Censor” and asserted that: It is not the function of the Censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to two along in a single file or to speak in chorus with one voice. It is not for him to exercise the statutory powers to force public opinion in a single mould or to turn the press into an instrument of brainwashing the public. Under the Censorship Order the Censor is appointed the nurse-maid of democracy and not its grave-digger. Dissent from the opinion and views held by the majority and criticism and disapproval of measure initiated by a party in power make for a healthy political climate, and it is not for the Censor to inject into this the lifelessness of forced conformity. Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication. [8] It is clear, on the basis of this and other decisions that, although censorship cannot per se be said to be unconstitutional, any attempt at imposing prior restraint on publication will have to meet the rigorous standards laid down under Articles 19(1)(a) and 19(2).

V. Other Legislations Dealing With The Functioning of Press

The Press and Registration of Books Act, 1867 This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses.

The Press (Objectionable Matters) Act, 1951This enactment provides against the printing and publication of incitement to crime and other objectionable matters.
The Newspaper (Prices and Pages) Act, 1956 This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter.

Defence of India Act, 1962 This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom of the Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper.

Delivery of Books and Newspapers (Public Libraries) Act, 1954 According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.
The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 It lays down the minimum standards of service conditions for newspaper employees and journalists.

Civil Defence Act, 1968 - It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence.

Press Council Act, 1978 Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament.

Broadcast- the broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB,[9] the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country.

The Broadcasting Code- adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned.

Cable Television Networks (Regulation) Act, 1995

basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier.

Direct-to-Home Broadcasting Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-to-Home TV service in Ku band in India.[10]

VI. Role of Supreme Court

In one of the earliest judgments, pre-censorship of the press was held to be unconstitutional Ramesh Thapar vs. State of Madras,[11] Brij Bhushan vs. State of Delhi.[12] Similarly, there has been lot of differences of opinions regarding indecency and immorality as to what constitutes indecent literature or other expressions through media. Similarly, the law of sedition under section 124A of the I.P.C. was also subjected to dispute in Kedarnath vs. State of Bihar,[13] when Supreme Court held the validity of this provision. Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the press and the same is included in the freedom of expression, which is conferred on all citizens Virender vs. State of Punjab[14] and Sakal Papers vs. Union of India[15]. It has also been by this judgment that freedom of the press under the Indian Constitution is not higher than the freedom of an ordinary citizen. It is subjected to same limitation as are provided by Article 19(2). It has been held by the Court in the above cases that press is not immune from paying taxes, from following labor laws, regulating services of the employees, law of contempt of the Court, law of defamation. It has been held by the Supreme Court that right of speech and expression includes right to acquire and import ideas and information about the matters of common interests in the case of Hamdard Dawakhana vs. Union of India[16] and to answer any criticism leveled against one's views through any media [LIC vs. Union of India][17]. This freedom also includes right to impart and receive information through telecasting [Ministry of Information vs. Cricket Association][18]. It also includes publication of advertisement and commercial speech [Tata Press vs. MTNL][19]. It also covers right to hold telephonic conversation in privacy [PUCL vs. Union of India][20]. It is thus quite clear that right to acquire and get information is a fundamental right under the Indian Constitution. In a recent case of Vineet Narain vs. Union of India[21], the Supreme Court held that considering the wide spread illiteracy of the voters and at the same time there over-all culture and character they need to be well informed about the candidate contesting election as M.P. or MLA so that they are in a position to decide independently to cast their votes in favour of more efficient candidates. The right to get information in a democracy is recognized in all the countries.

In one of the early decision in the case of State of UP vs. Raj Narain and Others[22], the Supreme Court of India considered a question whether privilege can be claimed by Government of UP under section 123 of Evidence Act in respect of Blue Book summoned from the Government of UP and certain documents summoned from SP, Police, Raibareilly, UP. The court observed thatIn a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.” In another recent case of Dinesh Trivedi, M.P. and Others vs. Union of India and Others[23], the Court dealt with citizen's rights to freedom of information and observed as under: - In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare. Democracy expects openness and openness is concomitant of a free society and the sunlight is a best disinfectant.”

VII. Conclusion
In keeping with its affirmation that freedom of expression is one of the essential foundations of a [democratic] society”, the Court has clearly shown a preference for freedom of press. In conclusion, it must be reiterated that the freedom of press and information are fundamental to healthy working of a democracy and therefore, must coexist with the freedom of speech and expression. At the time when the whole world is waking up to the need of the hour India must also rise and join the race of freedom and liberalization. However, as no freedom is absolute, India must put restrictions on these freedoms and must apply contemporary standards rather than international standards in determining the limits. But she must keep in mind that such limits must not be disproportionate with the compelling need. Possibilities for fair comment must be made available by the state and an atmosphere must be created in which neither the informant nor the information seeker has any fear or timidity. Political debates and sharing of ideas must be encouraged because they ensure a healthy government and in turn a healthy society. In the times when India has opened up to the world, it is the right time that she must also re-draft and incorporate provisions in its law to the changing needs - the need to enlarge its fundamental rights. Information does not stop at state borders anymore and therefore, conductive environment for free flow of information and ideas must be built. India should become well equipped to meet every challenge thrown to her in the world of technology and freedoms.

[1] . Janis, M., Kay, R., and Bradley, A. (1995), European Human Rights Law, (Oxford: Clarendon Press) P.157.
[2].283 U.S. 697 (1931)
[3]. 403 U.S. 713 (1971)
[4]. CAD, Vol. VII page 980 (as per Dr. B.R. Ambedkar); view reiterated by the Supreme Court in Indian Express Newspapers v. Union Of India, (1985) 1 SCC 641.
[5]. owell v Griffin (1938) 303 US 444; this view was followed and relied upon by the Supreme Court of India in Sakal Papers Ltd. v Union of India, AIR 1962 SC 305.
[6]. Romesh Thapar Vs. State of Madras, AIR 1950 SC 124
[7]. Express Newspapers Limited Vs. Union of India, AIR 1958 SC 578 at 621
[8] Binod Rao Vs. M.R.Masani, (1976) 78 Bom.L.R.125 at 169
[9]. (1995) 2 SCC 161.
[10]. The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the Government vide notification No. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications.
[11].(1950) S.C.R. 594
[12].(1950) S.C.R, 605
[13]. A.I.R. 1962, S.C. 955
[14]. A.I.R.1958, SC. 986
[15]. A.I.R 1962 S.C. 305
[16].(1960) 2 S.C.R. 671
[17]. A.I.R. 1993 S.C.171 (Para 8)
[18].(1995) 2 S.C.C. 161
[19].(1995) 5 S.C.C. 139
[20].(1997) 1 S.C.C. 301
[21].(1998) 1 ACC 226
[22].(1975) 4 SCC 428
[23].(1997) 4 SCC 306

The author can be reached at: / Contact No. 09904239068 / Print This Article
Address: GNLU E-4 GIDC Electronic Estate, Sector-26, Gandhinagar-382028 Gujarat


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