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Comparison of Indian and American Freedom of Press

To preserve the democratic way of life it is essential that people should have the freedom to express their feelings and to make their views known to the people at large. The press, a powerful medium of mass communication, should be free to play its role in building a strong viable society. Denial of freedom of the press to citizens would necessarily undermine the power to influence public opinion and be counter to democracy.

Freedom of Press has been recognised in Article 19 of the Universal Declaration of Human Rights, 1948; Article 19 of the International Covenant on Civil and Political Rights, 1976 as well as article 10 of the European Convention on Human Rights.

Freedom of press is not specifically mentioned in article 19(1) (a) of the Constitution of India and what is mentioned there is only freedom of speech and expression. In the Constituent Assembly Debates it was made clear by Dr. Ambedkar, Chairman of the Drafting Committee, that no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as their right of expression was concerned.

The framers of the Indian constitution considered freedom of the press as an essential part of the freedom of speech and expression as guaranteed in Article 19 (1) (a) of the Constitution. The freedom includes the right to express one’s conviction and opinions freely, by word of mouth, writing, printing, picture or electronic media or in any other manner.

It is clear that the right to freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and other views with complete freedom and by resorting to all available means of publication. The right to freedom of the press includes the right to propagate ideas and views and to publish and circulate them. However, the freedom of the press is not absolute, just as the freedom of expression is not.

Public Interest has to be safeguard by article 19(1)(2) which lays down reasonable limitations to the freedom of expression in matters affecting:

  1. Sovereignty and integrity of the State
  2. Security of the State
  3. Friendly relations with foreign countries
  4. Public order
  5. Decency and morality
  6. Contempt of court
  7. Defamation
  8. Incitement to an offence

View of Supreme Court on Freedom of Press:

In Ramesh Thapar vs. State of Madras (1950) entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The SC held that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation of a publication, for which circulation, the publication would be of little value. The SC therefore held that a ban authorizing the Government to impose a ban upon entry and circulation of a journal in a State, is restrictive of freedom of speech and expression and it can be valid till it falls within Article.

In Prabhu Dutt vs. UOI (1982) the SC has held that the right to know news and information regarding administration of the governments is included in the freedom of press. But this right is not absolute and restrictions can be imposed on it in the interest of society and the individual from which the press obtains the information. They can obtain information from an individual when he voluntarily agrees to give such information. In this case the court directed the superintendent of the Tihar Jail to permit the Chief Reporter of the Hindustan Times Newspaper to interview Ranga and Billa, the two death sentenced convicts, under Article 19(1)(a) as they were willing to be interviewed.

Issues relating to Freedom of Press:

Some of the issues relating to the freedom of press and the views taken by the apex court relating to them are as follows:
  1. Fixation of Maximum Pages:

    In Bennet Coleman Co. vs. UOI (1973) the validity of the Newsprint Control Order, 1962 which fixed the maximum number of pages at 10 which a newspaper could publish was challenged as violative of fundamental rights guaranteed under Article 19(1)(a) and Article 14 of the Constitution. The court has held that the Government can make a fair and equitable allotment of the available newsprint to the newspapers but once the allotments are made newspapers must be left free to determine how they will adjust their newsprint. Hence it has been made clear that the fixation of maximum number of pages of newspapers by the Government is against the freedom of press guaranteed by Article 19(1)(a).
     
  2. Fixation of minimum price according to number of pages:

    In Sakal Paper Ltd. vs. Union of India (1962) an order which fixed a minimum price and number of pages which a newspaper was entitled to publish was challenged as unconstitutional on the ground that it infringed the liberty of press guaranteed under Article 19(1)(a). the court has made it clear that the only restrictions which may be imposed on this right are those which clause (2) of Article 19 permits. Accordingly the court has held that fixing fixed a minimum price and number of pages which a newspaper was entitled to publish was unconstitutional as being in violation of Article 19(1)(a).
     
  3. Levy of duty or tax on Newspaper Industry:

    In Indian Express Newspaper vs. UOI (1985) the petitioner challenged the imposition of import duty and the levy of auxiliary duty on the newsprint on the ground of infringement of the freedom of press as it imposed a burden beyond the capacity of the industry and also affects the circulation of the newspapers and periodicals. The SC has held that the newspaper has no immunity from general laws like taxation or labour laws. The levy of duty or tax on the newspaper industry will be valid if it is within reasonable limit.
     
  4. Regulation of conditions of service of workmen in Newspaper Industry:

    In Express Newspapers Ltd. vs. UOI (1958) the validity of the regulation of conditions of service of workmen in newspaper industry through Working Journalists Act, 1955 was challenged. The court has held that the object of the Act was the amelioration of the conditions of the workmen in the newspaper industry. The court has made it clear that the press has no immunity from general laws like taxation or industrial laws consequently, the court has held that the act is valid.
     
  5. Commercial Advertisement:

    In Hindustan Times vs. State of UP (2003) it has been held that advertisement has direct nexus with circulation and revenue of newspaper and therefore the Government cannot impose an unjust condition in the matter of release of advertisements.
     
  6. Pre-censorship:

    Imposition of pre-censorship on a journal or newspaper previous to its publications is a restriction on the freedom of press and will amount to an infringement of the freedom of speech and expression guaranteed by Article 19(1)(a). However, the pre-censorship may be valid if it can be justified on any ground of reasonable restriction permitted by Article 19(2).
    In Express Newspapers Ltd. vs. UOI (1958) the SC held that a law which imposes pre-censorship or curtails the circulation or prevents from being started or require the Government to seek Government aid in order to survive was violative of Article 19(1)(a).

Freedom of Press in USA:

The First Amendment to the Constitution of the USA has expressly recognised the freedom of press.

In the United States, the government may not prevent the publication of a newspaper, even when there is reason to believe that it is about to reveal information that will endanger national security. By the same principle, the government cannot:
  • Pass a law that requires newspapers to publish information against their will.
  • Impose criminal penalties, or civil damages, on the publication of truthful information about a matter of public concern or even on the dissemination of false and damaging information about a public person except in rare instances.
  • Impose taxes on the press that it does not levy on other businesses.
  • Compel journalists to reveal, in most circumstances, the identities of their sources.
  • Prohibit the press from attending judicial proceedings and thereafter informing the public about them.

The above defined bundle of rights was largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment

In Lowell vs. Griffin (1938) the US court has observed that the freedom of press is not confined to newspapers and periodicals, but it includes also pamphlets and circulars and every sort of publication which affords a vehicle of information and opinion.

Analysis of Indian and American legal systems:

Two great democracies of the modern world, America and India doing poetic justice has recognized the right of freedom of speech and expression which extends to the freedom of the Press. The provision with regard to this freedom is quite similar in both legal systems, that being said, the freedom of the Press in the US constitution has two positive features, that is:
  • freedom of press is specifically mentioned therein,
  • No restrictions are mentioned on the freedom of speech.
With respect to India, the Apex Court of India has held that there is no specific provision ensuring freedom of the press separately but this freedom of the press is regarded as a “species of which freedom of expression is a genus”.

Therefore, press cannot be subjected to any special restrictions which could not be imposed on any private citizen, and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen.

Despite similarities in their constitutional provisions, the United States and India have their own distinctive jurisprudence on freedom of speech. To add to that, they also differ in what actually includes and is accepted as free speech.

The premier difference among the systems is the extent of the freedom, the US legal system gives the Press absolute freedom whereas in India is more of a right which extends to certain levels and the restrictions are well defined. This difference is attributable to the reasonable restrictions provision and the moral standard of the communities. India has progressed from an authoritarian system of control and is now attempting a legislative model of control, quite similar to that of the United States.

The consequence of the extent of the Freedom in the US constitution is that ideas or expression which may be offensive or hurtful or even racial can be expressed freely. The constitutional guarantee of freedom of expression under the First Amendment then means freedom of expression in the fullest sense.

Whereas the freedom of press in the Indian Constitution is subject to the restrictions stated in Article 19(2). Although the Constitution shows has no special provision to safeguard the rights of the press, the Indian Judiciary has taken up the role and confirmed that the rights of the press are implicit in the guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution.
In fact, multiple judgments of the Supreme Court of India have struck down laws that abridge the freedom of the press and have echoed the sentiment expressed in the First Amendment of the US constitution.

In Brij Bhushan vs. State of Delhi (1950) the SC has observed that the fundamental freedom of speech and expression enshrined in our constitution was based on the provisions to the First Amendment of the Constitution of the USA.

Conclusion:
Press is considered the watchdog of democracy. The Two big democracies of world have remarkably protected this right.

As far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls in fundamental right category. Indian courts have always placed a broad interpretation on the value and content of Article 19(1) (a), making it subjective only to the restrictions permissible under Article 19(2).

The United States has a complex First Amendment jurisprudence that varies the protection offered free speech according to form. Similarly, India developed its own free speech jurisprudence that applies a reasonable restrictions test based on eight mentioned restrictions.

The real difference in freedom of speech enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions provision and the moral standard of the communities.     

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