|
Introduction
The Indian law makers are being flooded with requests and
suggestions from news agencies and rights groups from the world
over to review the concept of press freedom in India following the
latest scuffle between the Press and the Legislature-the fiasco
involving the TN legislature and the reputed national daily 'The
Hindu'. This article aims to throw light on the issue by taking
the reader very briefly through the important events which led to
the evolution
of press freedom and its position in the present scenario.
The idea of
freedom of press is on of those which has gained acceptance only
in the recent past and which is still evolving. In fact it was
only three centuries ago [on 24 th February 1703] , Daniel Defoe
was fined 200 Marks and condemned to be pilloried three times, to
be imprisoned indefinitely and to find sureties for his good
behaviour during seven years for writing an anonymous pamphlet
called "Shortest way with the Dissenters"[1702]. But then , it was
the time when publishing a newspaper was considered illegal as it
manifested an intention to commit a breach of peace.(1)
Gradually
liberal views and ideas started gaining more importance. The
growth of democratic polity and liberty of press were intertwined
. Blackstonian concept of freedom of press which was expressed as
early as in 1769 contained four basic points
(2) Which still form the crux of the concept of press
freedom . They are as follows:
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.
In 1885
A.V.Dicey also wrote to the same effect. In simple words freedom
of press is nothing but " the freedom of individuals to express
themselves through the medium of press."
The freedom of press is not superior to that of the individual .
In fact freedom of press is the right of every individual, every
citizen of the country.
Freedom of press also found a place in the American Constitution
which has been
Greatly influenced by the English Common Law. An expressed
provision was made for freedom of press in the Bill of Rights
which was incorporated into the American Constitution by the First
Amendment. This Amendment was largely influenced by section 12 of
the Virginian Declaration of Rights in which press was described
as
"one of the great bulwarks of liberty which were not to be
restrained by despotic governments". (3)
Blackstonian concept of liberty of press which lay in prior
restraint and making it accountable on abusing the right ,
generally held the field.
Swedish
Constitution is one of the few other Constitutions which has made
expressed provisions for freedom of press in its Constitution. The
law of freedom of press
in Sweden which was first promulgated in 1810 was replaced in 1949
by an new Act which enjoyed the sanctity of being a part of the
Constitution. Most of the Articles of Freedom of Press Act are to
be found in the Constitutional documents of Sweden along with the
Amendments made.
It is also a well known fact that the Scandinavian countries have
always been in the vanguard of press freedom.
To a certain
extent one can say that the debut of press in India was made with
commercial interests in mind. It was the contribution of the first
British MNC -The East India Company. It was one of those
instruments of the British, which was later manipulated by the
Indians to serve their interests ; as the role of the press under
went a major change and it soon turned out to be one of the most
effective weapons Indians had at their disposal during their
struggle for freedom from the British. 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 judgements were given curbing press freedom.
From there on ensued a struggle where the Indian leaders fought
for their fundamental freedoms which included the freedom of
speech and expression which covered freedom of press.
The Indian
demand for a declaration of rights , on the lines of American Bill
of Rights by which they were greatly impressed, in the Government
of India Act 1935 was rejected by the Joint Select Committee of
British Parliament. But the Indian leaders continued to demand
these freedoms and also pledged from time to time t secure these
freedoms in the written Constitution of free India. 4 Hence the
absence of a provision explicitly incorporating freedom of press
in the Draft Constitution surprised many , who considered it to be
a great blemish on the Indian Constitution which was promoted as a
'progressive liberal Constitution'.
However, the
Constituent Assembly thought that the freedom of press meant
freedom of expression and no specific mention of the same was
warranted. "The editor of a press is merely exercising the right
of the expression , and therefor , no special mention of the
freedom of press is necessary."
(5)
An
overview of the Constitutional provisions and other legislations
regulating freedom of press
Freedom of
press has always been a cherished right in all democracies .
"Growth and development of representative democracy is so much
intertwined with growth of press that the press has come to be
recognized as an institutional limb of modern democracy."(6)
The newspaper
not only presents facts but also gives interpretation of facts and
statements of opinions through its editorials and also propagates
ideas and ideologies. They are supposed to guard public interests
by bringing to fore the misdeeds, failings and lapses of the
government and other bodies exercising governing power. The press
has therefore been rightly described as the Fourth Estate.
And hence it
is also very necessary to limit this influential institution's
powers .
"Freedom of Press is not absolute, unlimited and unfettered at all
times and in all circumstances as it would lead to disorder and
anarchy." (7)
The Indian
Constitution provides for this freedom in Article 19(1)(a) which
guarantees right to freedom of speech and expression. It has been
held that this right to freedom also includes press freedom. It is
an implied or deduced right.[The economic and business aspects of
the press are regulated under Article 19(1)(g) which provides for
freedom of profession , occupation, trade or business which is
restricted by Article 19(6) which includes provisions for public
interest, professional and technical qualifications and state
nationalization- total or partial.]
Freedom
granted under Article 19(1)(a) is restricted by the limitations
which are mentioned in Article 19(2) which provides that the
guarantee of the above right would not affect the operation of any
existing law in so far as it is related to , or prevent the state
from making any law relating to libel, slander, defamation,
contempt of court or any matter which offended against decency or
morality or which undermined the security of or which tended to
overthrow the state.
Article 19(2) has been amended twice since the commencement of the
Constitution. The first Amendment was in 1951 and it was followed
by a second one in 1963.
Article 19(2)was first amended by the Constitution (First
Amendment) Act ,1951. This Amendment enlarged the scope of the
restrictive clause by addition of three new grounds viz. Friendly
relations with foreign states , public order and incitement to an
offence.
The term 'defamation' being a generic one and 'libel' and
'slander' being its species ; that term and the words 'tends to
overthrow the state' was dropped by the Amendment. The expression
'security of the state' was meant to cover the ground 'to over
throw the state' also. Another feature of the first Amendment was
inclusion of the word "reasonable" before the word "restrictions".
As a result of the cries and agitation for secession from India by
the regional groups Article 19(2) was further amended . It was
amended by the Constitution [Sixteenth Amendment] Act 1963 which
included one more ground in the clause, viz. "sovereignty and
integrity of India."
The clause,
Article 19(2) now runs as follows :
"Nothing in sub clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the state from making
any law , in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub clause in the
interest of the sovereignty and integrity if 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."
Although Article 19 (1)(a) is limited by the above clause the
courts have adopted a liberal view while deciding questions
pertaining to press freedom of constitutional validity of an
impugned statute. The superior courts discharged the role of
sentinel on the 'qui vive'.
The Supreme
Court has emphasized the great value of the freedom of press in
democratic society. Thus from the start the judiciary has
vindicated the stand taken in the Constituent Assembly .
In Romesh Thappar v State of Madras
(8) the Supreme Court struck down as violative of Article
19(1) (a) , the Madras Maintenance of Public Order Act 1949, whose
section 9[1A] sought to impose restrictions on the freedom of
press not against undermining the security of the state or its
overthrow but for the wider purpose of securing public safety or
maintenance of public order ;as in the opinion of the Court the
law fell outside the scope of Article 19(2).
The Court laid down the following rule that so long as the
possibility of a law being applied for purposes not sanctioned by
the Constitution cannot be ruled out , it must be held to be
wholly unconstitutional and void since it is not severable.
The Court also struck down in Brij Bhushan v State of Delhi
(9) which was essentially on the same
lines , the East Punjab Public Safety Act1949 which, through its
section 7 (1) (o) , provided for special measures to ensure public
safety and the maintenance of public order.
In re the
Bharati Press the validity of section 4 (1) (a) of the Press
[Emergency Powers] Act 1931 was in question. The section which
dealt with incitement to an offence was held to be worded in
general terms and was declared ultra vires by the Patna High Court
as it could have been applied to both 'aggravated forms of
offences like political assassination and as also to ordinary
murders or cognizable offence involving violence .'
Hence Constitution [First Amendment]Act ,1951 was passed to
include the grounds of public order and incitement to an offence
to meet the situation which arose from Supreme Court's decision in
Romesh Thappar's case. (10)
Brij Bhushan v State of Delhi (11)
also dealt with the question of validity of censorship . It was
held that such censorship on a journal previous to its publication
would amount to infringement of Article 19(1)(a).
The Supreme Court held in the Auto Shanker case that the
government has no authority in law to impose a prior restraint
upon publication of defamatory material against its officials.
(12) The Court also observed that to
propagate ones ideas every citizen has a right to publish,
disseminate and circulate them to reach any class and any number
of readers subject of course to the limitations permissible under
a law competent under
Article 19(2).(13)
Freedom of press is also both qualitative and quantitative .
(14)The view of the Courts regarding
press freedom can be summed up as follows:
"The
expression 'freedom of press' has not been used in Article 19.but
it is comprehended within Article 19(1)(a). The expression means
freedom from interference from authority which would have the
effect of interference with the content and circulation of
newspapers . There cannot be any interference with that freedom in
the name of public interest. The purpose of the press is to
advance the public interest by publishing facts and opinions
without which a democratic electorate cannot make responsible
judgments. Freedom of press is a heart of social and political
intercourse, It is the primary duty of Courts to uphold the
freedom of press and invalidate all laws or administrative actions
which interfere with it contrary to the constitutional mandate."
(15)
The 44th Amendment[1978] of the Constitution also provides for
constitutional protection for journalists from 'breach of
parliamentary privilege' as they are allowed to publish
proceedings of the Parliament and state legislatures . Article
361-A was incorporated into the Constitution by this amendment and
it provides that
No person shall be liable to any proceedings, civil or criminal ,
in any Court in respect of the publication in newspaper of a
substantially true report of any proceedings of either house of
Parliament or the Legislative Assembly or as the case may be
either house of legislature of a state; unless publication is
proved to have been made with malice. But this immunity does not
apply to the publication of a report of a secret sitting of a
house.
Prior to the amendment this protection was given only by a
parliamentary law-Parliamentary Proceedings (Protection of a
Publication) Act ,1956.
But the 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 , to name a few .
These laws
deal with different issues like those of decency or morality, the
issue of privacy Vs right to information, defamation etc. Issues
arising due to investigative reporting are also dealt with by
these laws. There are also exclusive press laws like Working
Journalists Act, Press Councils Acts, Newspapers Act, Press and
Registration of Books Act etc. The Press Councils Act created the
quasi judicial body- Press Council of India.
Article 19 of Universal Declaration of Human Rights is also
recognized and followed in India, which states that:
"Every one has the right to freedom of opinion and expression ;
this right includes freedom to hold opinions without interference
and to seek , receive and impart information and ideas through any
media and regardless frontiers."
Press Freedom- Current Scenario
Freedom of press or rather the lack of it as an issue has gained
importance in the last 2- 3 years . Some of the recent incidents
which has brought the issue to the forefront are as follows:
Spearheading the list is the Tehelka episode where the news portal
was forced to shut down completely following the continued
harassment of its [Tehelka.com's] journalists ;for having exposed
the 'scam' in the defence department involving ex -defence
Personnel's and central government ministers . Another issue which
created a lot of hue and cry over press freedom was the threat to
expel Alex Perry of the TIME magazine which questioned Prime
Minister Vajpayee's physical fitness to lead the country.
Journalists working in Gujarat and Kashmir have also been
susceptible to frequent attacks for reporting on the political
scene there.
But the latest controversy which has brought the perennial problem
(16) of protection of freedom of
speech and press from arbitrary exercise of the power of punishing
for contempt possessed by the legislature, back in to limelight,
is the action of the Tamil Nadu Legislative Assembly, of punishing
the editors and journalists of The Hindu for publishing reports of
speeches in the Assembly and for editorial comments on its action
of referring those reports to its privilege committee.
The root and justification for the existence of the power of the
Parliamentary Privilege given by our Constitution lies in the
ancient privilege given to English House of Commons in 1689. But
these powers of the house which have been referred to as "insult
laws" (17), have been condemned and
scrapped in most of the nations. The powers of commitment to
prison which were described in England as the keystone of
Parliamentary Privilege are not longer in use. The Joint
Parliamentary Committee recommended in1999 that Parliament's power
to imprison persons, whether members or not who are in contempt of
Parliament should be abolished .
But as far as the situation in India is concerned there exists
constitutional contradictions as to whether the Parliamentary
Privileges are limited by Fundamental Rights . It has been held
that the transitional provisions in the first part of Article
105(3) and 194(3) are provisions independent of Part III of
Constitution and are therefore not controlled by
Part III . (18)But as we see , in the
'Reference Case' ,(19) it has not
been possible for Supreme Court to maintain this proposition in
toto, as it questioned the theory that the exercise of the
Legislature's right to punish for contempt was absolute and
uncontrolled as it held that any action of the Legislature was
examinable by the Court if it was violative of the fundamental
right to freedom embodied in Article 21 [right to life and
personal liberty] of the Constitution.
The result is that this uncertain situation will continue , until
the Supreme Court launches into the area and clarifies its
previous decisions which are conflicting and legislators come
forward to codify the privileges. Mean while the power of
Parliamentary privilege can be subjected to judicial scrutiny
[judicial review] as every authority or power should be exercised
within the constitutional limits.
As Chief Justice (retd.) P.N.Bhagwati had put it " Every organ of
the government , be it executive, legislature or the judiciary,
derives its authority from the Constitution and it has to act
within the limits of its authority. No one, howsoever highly
placed, and no authority , howsoever lofty can claim that it shall
be the sole judge of the extent of its power under the
Constitution."
A permanent solution is necessary as despite the Courts' earlier
decisions matter has been raised again and again. The seriousness
of the matter also calls for an urgent need for codification of
Parliamentary Privilege as there is no other alternative. The
legislators' reluctance to codify has been attributed to the
reason that it would mean limiting their powers; as the Court has
made it quite clear that if the Parliament or a State Legislative
enacted a law under Articles 105(3) or194(3) respectively to
define its privileges then such a law would be subject to Article
19(1)(a) and a competent Court could strike down that law under
Article 13 of the Constitution if it violated or abridged any of
the fundamental rights.(20)
Conclusion
On analyzing the latest developments conclusion can be drawn that
the latest issue was a misadventure , occurrences of the like we
have to stop at all costs. We have to remember that fundamental
right of free expression also includes fair comment and criticism
and as has been pointed out by Chief Justice(retd)
P.B.Gajendragadkar the freedom of expression of opinion "does not
mean tolerance of the expression of opinions with which one agrees
but tolerance of the expression of opinions which one positively
dislikes or even abhors." Scrutiny of public figures by the fourth
estate is a stipulation which cannot be done away with. Basic
issues relating to Article 19 (1)(a) personal liberties and the
principles of natural justice need to be settled. Existing
privilege laws are a bit too ambiguous and expansive in nature as
it doesn't define what exactly constitutes a breach of privilege
or Contempt of House. Hence the need to codify privileges.
The issue of 'pre-licensing' in a different form has gained
relevance recently; although at present it is confined to U.S.A.
This question gained importance with the request by White House to
use 'judgement' before airing any news following the 'attempts' by
terrorists to use international media to facilitate their
activities. Perhaps 'judgement' is another name for 'controlled
freedom of press'. But there is no freedom to destroy freedom.
Freedom carries with it certain responsibilities and it would only
lead to its suicide if its allowed to degenerate itself into a
license.
It should not be forgotten that the press has a duty to show that
it serves public interest at large. It is also the essential duty
of press to strike that proper balance between citizen's right to
privacy and public's right to information vis-à-vis the role of
media i.e. the press. The press should show their functional
accountability.
Further , due regard has to be given to the recommendations made
by the National Commission to Review the Working of the
Constitution [NCRWC]. (21)They have
recommended the inclusion of freedom of press-media under Article
19(1)(a). Recommendations have also been made with the intentions
to protect journalists and professionals, from being compelled to
disclose information received in confidence except when required
in public interest and also against a charge of contempt of Court
by permitting truth as a defence.
At this juncture , as we are approaching the sixth decade of our
freedom , lets keep in mind the pertinence of freedom of press and
what our former Prime Minister Rajiv Gandhi had said about press
freedom:
"Freedom of Press is an Article of Faith with us , sanctified by
our Constitution, validated by four decades of freedom and
indispensable to our future as a Nation."
(*This
is article is for general information only
)
Reference:
1.According to Sir .William Scroggs
who became Lord Chief Justice in 1678 (UK); Freedom of Press Some
Recent Trends(1987) by E.S.Venkataramiah; pg 13 para 1.
2. Press and the Law (1990) by
Justice A.N.Grover; pg 7 para 2
3.
www.law.cornell.edu/constitution/constitution.overview.html
4. Freedom of Press Some Recent
Trends (1987) by E.S.Venkataramiah; pg 18-19
5.Dr.Ambedkar's speech in Constituent
Assembly Debates, vii-980.
6.Vide Author's Commentary on the
Constitution, 6th Ed,Vol C, pg 95-97; Indian Express v Union of
India(1985) 1 SCC 641
7.In re , Harijai Singh ,(1996) 6 SCC
632; AIR 1995 SC 264
8.AIR 1950 SC 124
9.AIR 1950 SC 129
10. ibid
11. ibid
12.R.Rajagopal v State of T.N;(1994)
6 SCC 632
13. Sakal Papers v Union of India;
AIR 1962 SC 305
14.Bennett Coleman and Co v Union of
India ; AIR 1973 SC 106
15. Indian Express Newspapers v Union
of India; (1985) 1 SCC 641
16.http://www.thehindu.com/2003/11/14/stories/2003111401331000.html
17. as has been described by
Mr.Johann .P.Fritz, Director of International Press Institute
18. Search Light case; Sharma v Sri
krishna;A.1959 SC 395
19. AIR 1965 SC 745
20. Search Light case
21.
www.lawmin.nic.in/ncrwcfinalreport/volume1.html
|
"Has The Time
Come To Review Press Freedom?"
More
Articles:
The
author can be reached at: himalawrence@rediffmail.com /
