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Curtailing The Might Of The Pen

If liberty means anything at all, it means the right to tell people what they do not want to hear. - George Orwell

In India, this right is enshrined in Article 19 (1) (a) of the Constitution of India which provides that: All citizens shall have the right to freedom of speech and expression. However, the said right is restricted by provisions of Article 19(2), according to which reasonable restrictions may be imposed on the exercise of the said right in the interests of the:
  1. sovereignty and integrity of India,
  2. the security of the State,
  3. friendly relations with foreign States,
  4. public order,
  5. decency or morality, or in relation to
  6. contempt of court,
  7. defamation or
  8. incitement to an offence.
The Freedom of Speech and Expression includes several other rights such as: Freedom of Press, Freedom of Commercial speech, Right to Broadcast, Right to Information, Right to criticize, Right to expression beyond national boundaries and Right not to speak or right to silence.

Of the various rights included in the freedom of speech, the right to the freedom of Press is of paramount importance and has often been tested in the courts of the country.

Free speech or censorship?

This has been hotly debated in view of the criticism by the citizens or the policies of the government.

The question of the freedom of speech and freedom of the press has recently been raised before the Supreme Court by the Republic TV Editor-in-chief Arnab Goswami, who has filed a Writ Petition seeking quashing of the various FIRs registered against him for allegedly inciting communal hatred and defaming Congress President Sonia Gandhi, insinuating that the Palghar lynching and the mass gathering of migrants on April 14, 2020 outside the Bandra station were engineered by the Congress party.

Mr. Goswami has invoked the right to freedom of the press in his plea and has claimed that the registration of these FIRs amounts to restriction of the rights of the press. Goswami also accused the Congress of attacking him and his wife when they were returning home from work. Another set of complaints accuse Arnab Goswami of communalising the aforesaid April 14 migrant workers' incident and inciting hatred against Muslims by his only near mosque allegation in relation to it. Senior Counsel Mr.Harish Salve who is representing Goswami in the second petition invoked Article 19 (1) (a) and questioned the court as to whether the Police can intervene and the CRPC can be applied to telecasts and opinions, either on TV or in print, without any checks and safeguards?
This will have a chilling effect on the freedom of the press remarked Mr. Salve. While interim protection from arrest had been granted to Goswami, the Supreme Court in its final judgment refused to entertain the prayers for quashing of the FIRs and the alternate relief of transfer of probe to CBI.

The judgment written by Dr Justice D.Y. Chandrachud held that:

… the right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But we must as a society never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position…

The law on the freedom of press imbibed in the freedom of speech has evolved in India through the various judgments passed by the Hon'ble Courts of the country over the years. Before Independence, there was no constitutional or statutory provision to protect the freedom of press.

As observed by the Privy Council in Channing Arnold v. King Emperor[1]:

The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.

In Romesh Thapar v. State of Madras[2], the Hon'ble Supreme Court of India had observed that the right to free speech and expression being the foundation of all democratic organisations and free political discussions, any legislative abridgment thereof can be permitted in a very narrow and stringent sphere.

In the order of the Apex Court, Patanjali Shastri, Chief Justice remarked:
...A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.: [Quoted in Near v. Minnesota].

The Supreme Court of India has on several occasions been tasked with enforcing the freedom of the press and it has struck down the various forms of fetters attempted to bog down the press. For instance in the case of Brij Bhushan v. State of Delhi[3], Section 7 of the East Punjab Safety Act, 1949, which imposed certain ‘prior restraints' on publishing was struck down as being a restriction on the liberty of the press.

There is a catena of decisions invalidating laws or administrative actions which interfere with the right to free speech; the inherent theme noticed in them is captured by the Apex Court in the following observation:
In today's free world freedom of press is the heart of social and political intercourse. ... Newspapers being purveyors of news and views having a bearing on public administration, very often carry material which would not be palatable to governments and other authorities. The authors of the articles which are published in newspapers have to be critical of the action of government in order to expose its weaknesses. made in its judgment in Indian Express Newspapers v. Union of India & Ors.[4]

The flip side of the contentions in the freedom of speech and press, i.e. imposition of reasonable restrictions is equally important. The Apex Court In Re: Harjai Singh and Nar. & in Re: Vijay Kumar[5] has observed that freedom of press can never be and is not an absolute right. If freedom of speech was absolute, without any reasonable restraints then it would be akin to an uncontrolled licence resulting in chaos and anarchy.

The Hon'ble Court observed that the freedom of the Press cannot be enjoyed without due regard to their duty to be responsible to the society and that the right to express opinions comes with a duty to be conscientious and maintaining public order, morality and dignity.

The Supreme Court observed in this case:
If a newspaper publishes what is improper, mischievously false or illegal and abuses its liberty it must be punished by Court of Law…

The Fourth Estate having become a part of life in the 21st century, it cannot be denied that freedom of the Press is necessary for smooth and efficient functioning of national governments and world organisations. A free press is a pillar of democracy and particularly in the context of a developing nation like India, the freedom of the press has contributed significantly to the evolution of India as a democratic nation.

Any restraint on the freedom of press is a threat to the exercise of each citizen's fundamental rights. However, absolute and unregulated freedom of speech of one man possesses the capacity to be a hindrance or a violation of fundamental rights of another. Thus, in such scenarios there is a very thin line of difference between freedom of the Press, investigative journalism and expressing opinions on the one hand versus defamation, sedition and sensationalisation of news by making unsubstantiated imputations against public personas on the other hand.

In the context of the ongoing spat between Arnab Goswami, the Congress and its President Sonia Gandhi, there appears to be an attempt to strong-arm the journalist, although the statements made by Goswami do not appear to be objective journalism. In such situations, the role of the Press Council of India (the PCI) is significant as the governing statutory body. Fortunately or unfortunately, the PCI is a toothless regulator since it does not have any powers of enforcement under the Press Council Act, 1978, which appears to be the only governing statute. Further, the electronic media is not even governed by the PCI. Thus, the field is self-regulated with media houses being responsible to abide by the ideal rules of conduct proposed by the PCI and best global practices.

There have been several instances in the past where the Government has tried to clip the wings of the press by passing various orders, however it is the judiciary which has acted as the guardian of the press and at the same time controlled this freedom when an overzealous press has sought to cross its limits. The above referred judgments reflect that the judiciary has played a pivotal role in protecting and limiting the right of the free press.

The approach of the Indian judiciary seems to be in agreement with Albert Camus who had remarked:

A free press can, of course, be good or bad, but, most certainly without freedom, the press will never be anything but bad.
Having said that, as the freedom of press cannot be unregulated, it must be said the Press should self-regulate itself rather than their freedom/powers being curtailed by the legislature/ judiciary. The balance therefore is that while ensuring the freedom of the Press, the protective cover of press freedom must not be thrown open for wrong doings.

This article has been co-authored by Heta Modi and Shivani Vora. Heta is a lawyer with over 10 years of PQE in Real estate, banking, finance and general corporate. Shivani is a qualified lawyer with 2 years of PQE and is currently pursuing her solicitors' exams and is a young legal enthusiast practising real estate, banking finance, arbitration and litigation.

End-Notes:
  1. (1914) 16 BOMLR 544
  2. 1950 AIR 124, 1950 SCR 594
  3. AIR 1950 SC 129
  4. 1986 AIR 515, 1985 SCR (2) 287
  5. (1996) 6 SCC 466

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