Freedom of expression and the press lies as a important civil society factor
on the institution of all democratic organisations, and the press has a special
role to play in providing a forum for free political discussions. The media in
India enjoys a great deal of freedom and when it is threatened, the response is
So, there is a need to maintain a balance that is connecting free expression and
other community and individual rights; this responsibility should not be borne
by the judiciary alone, but by all those who enjoy these rights. Freedom of
Expression has always been emphasized as an essential basis for the democratic
working of a society.
Freedom of Press as a part of fundamental right has remained an issue that has
led to endless number of debates across the democratic world in the past few
decades. The democratic qualifications of a state are judged today by the extent
of the freedom enjoyed by the press in that state. The Press provides
comprehensive and objective Information of all aspects of the country’s Social,
Political, Economic and Cultural life.
In order to preserve the democratic way of life which is envisaged under the
Indian Constitution, it is essential that people should have the freedom to
express their feelings and have the opportunity to make their views known and
disseminated to the people at large. The widest possible dissemination and
circulation of information from diverse sources is essential to the welfare of
The right to utter honest and reasonable criticism on matters of public concern
is a source of strength to the community, and the press being a powerful media
of mass communication should be free to play its role in the process of building
a strong viable society in India. defiance of the right to freedom of the press
to citizens would necessarily undermine the power to influence public opinion
and would run counter to the principles of democracy itself.
Right to freedom of the press is not specifically mentioned in article
19(l)(f) of the Constitution, and what is mentioned there is only freedom of
speech and expression. It may be argued that freedom of speech and expression
may relate to utterances in writing or in printing or manifestation.
Freedom of speech and expression is the most basic of all freedoms granted to
the citizens of India under the Indian constitution. J Patanjali Shastri has
stated in the case of Romesh Thaper vs State of Madras( AIR 1950 SC) that
freedom of speech and that of the press lay at the foundation of a democratic
society, and without free political discussions, no public education is
possible, which is so important for the proper functioning of the govt.
It allows the individuals to freely express their ideas and thoughts through any
medium such as print, visual, and voice. One can use any mode of communication
of visual representation such as signs, pictures, or movies. Freedom of speech
would amount to nothing if it will not be possible to propagate the ideas. Thus,
the freedom of publication or press is also covered under freedom of speech.
Freedom of speech serves 4 purposes:
- allows an individual to attain self fulfillment
- assists in the discovery of truth.
- it strengthens the capacity of a person to make decisions.
- it facilitates a balance between stability and social change.
This right is not only about communicating your ideas to others but also about
being able to publish and propagate other people's views as well. Thus, freedom
of speech and expression is also linked to the people's right to know.
Freedom of speech and expression is a representation of feelings, intention of
thoughts in writings by an individual, and in that sense, freedom of speech and
expression may not include freedom of the press, which is essentially freedom of
publication and freedom of circulation of the matter so published. However, a
reference to the Constituent Assembly Debates would dispel such an argument.
It was made clear by Ambedkar, Chairman of the Drafting Committee, that no
special mention of the freedom of the press was necessary at all as the press
and an individual or a citizen were the same so far as their right of expression
The Constitution of the United States provides specifically for the guarantee of
freedom of the press and gives recognition of the subject-matters of the press
as an organ of publicity and media of mass communication. But the framers of the
Indian Constitution were content to treat the freedom of the press as an
essential part of the freedom of speech and expression as guaranteed in Article
19 (l)(a) of the Constitution. In this respect the Indian Constitution followed
the law of England where it is recognised that the law of the press was merely a
part of the law of libel.
In Romesh Thappar v. State of Madras
, and Brij Bhushan v. State of
the Supreme Court took it for granted that the freedom of the press
was an essential part of the right to freedom of speech and expression. It was
observed by Justice Patanjali Sastri in Romesh Thappar that the freedom of
speech and expression included propagation of ideas, and that freedom was
ensured by the freedom of circulation. It is thus 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.
This view was reiterated in Sakal Papers (P) Ltd. v. Union of Indian
regarded as settled in Bennett Coleman & Co. v. Union of India
. As the
right to freedom of speech and expression is guaranteed to a citizen, and not to
a person, a non-citizen running a newspaper, is not entitled to the benefit of
freedom of the press.
Moreover, freedom of the press in India stands on no higher footing than the
freedom of speech and expression of a citizen and no privilege attaches to the
press as such as distinct from the freedom of the citizen.
The right to freedom of speech and expression is not absolute and its exercise
is subject to the limits premissible under clause 2 of Article 19 of the
Constitution; these limits apply equally to freedom of the press. Parliament or
state legislatures may validly pass a law which places restrictions on the right
to freedom of speech and expression provided such restrictions are related to
one or more of the purposes mentioned in clause (2) of article 19.
These restrictions have to be reasonable, and the 'reasonableness' is
justiciable. However, the courts in India, unlike in the United States, have no
discretion to evolve new limits as exceptions to this constitutional freedom,
and the constitutionality of a law abridging this freedom has to be tested only
by reference to the permissible limits.
The right to freedom of the press guarantees the right to propagate ideas and
views and to publish and circulate them so as to reach any class and number of
readers, and thus includes the volume of circulation. This freedom is not
confined to the propagation of one's own views but extends to the publication
and circulation of other's views also.
Concept of reasonableness implies that the restraint that might be placed on the
right of the individual should not be arbitrary or of excessive nature and the
proper balance has to be drawn between the freedom guaranteed by article
19(l)(a) and the protective provisons of article 19(2). All citizens are
guaranteed the right to freedom of the press and it is expected that that right
would be exercised keeping in view the interests of others and also the good of
However, the press being a mighty institution in influencing the minds of
readers, particularly in view of the modern facilities for the swift circulation
of newspapers and journals, it has the potentialities of being abused or
exercised for anti-social purposes. It is for this reason that certain
restraints on the exercise of this right are provided in clause 2 of article 19.
In order to have an objective assessment in drawing a balance between the two
competing interests it may not be possible to lay down any criterion of
reasonableness which may be applicable to all cases.
The constitutionality of a restriction will, therefore, depend on the cumulative
effect of the facts and circumstances of each case. But in order to be
reasonable, a restriction should be one which must have a reasonable relation to
the object, which is sought to be achieved by the enactment. No right is an
absolute right. Art 19 (2) says that nothing in Art 19 (1) (a) shall affect the
operation of any law or prevent the state from making any law, in so far as such
law imposes reasonable restrictions on exercise of the right conferred by the
said clause in the interest of:
- sovereignty and integrity of the country.
- security of the state
- friendly relations with foreign states.
- public order
- decency and morality
- contempt of court
- incitement of an offence.
In the original version of this article several other grounds such as public
order, friendly relations with foreign states, incitement of an offences were
not there. After the historic judgement in the case of Romesh Thaper vs State
(SC AIR 1950), these grounds were added to the article. After this
case, Madras Govt. prevented the entry and circulation of the new paper 'Cross
Roads' published by Romesh Thaper, in the state of Madras.
It was argued that the circulation of the paper affects public safety.
However, SC held that the public safety falls outside the scope of 19 (2) and
thus the govt action was held invalid. This decision prompted the government to
amend the constitution to include some additional grounds as mentioned above.
It is important to note that the current clause mentions the words "reasonable
". Thus, any law restricting the freedom of speech and
expression must satisfy the grounds mentioned in Article 19(2) and must also
satisfy the criteria of reasonableness.
Reasonable restriction means intelligent care and discussion that the
restriction is not beyond what is required for public interest. It should not be
arbitrary and excessive in nature. Further it was said that the restriction can
only be imposed by law and not by executive or departmental decision.
While any restrictions of free speech and expression must be reasonable, there
is no provision exhorting the individual to be reasonable in the exercise of
their rights. It could be argued, in fact, that, If liberty means anything
at all, it means the right to tell people what they do not want to hear.
Nevertheless, the right to free speech and expression does not exist in a
vacuum, and must be balanced with other rights.
It is in maintaining this balance that the idea of responsibility as part of a
right comes into play. Thus the tension between freedom of expression and
intervention by authorities remains in limelight. As noted above, the
reasonableness of restrictions on freedom of speech are decided on a case by
case basis. Any intervention by the state would be dictated by societal
standards of acceptability.
The laws currently in place show the state will step in to prevent violence and
harm to reputations. The popular reactions to other government measures, such as
the policing of the internet, show that in these cases the government seems to
be going too far. Once the way is clear for the government to intervene, the
extent and result of that intervention must be specified.
There needs to be a clearly-defined spectrum, with cautions or fines at one end,
and imprisonment at the other, which can be applied to reign in infringing
expressions. The punishment will, of course, depend on the circumstances of the
intervention, with proportionality the key principle to follow. While
individuals will have to rely on authorities being fair and just, the media
industry may be able to pre-empt government action.
If the industry was to regulate itself, any offences could be dealt within that
level. In order to maintain effective self-regulation, the industry first needs
to create an architecture which supports its agenda. In the first place, any
industry association or body responsible for regulation would need universal
Allowing potential members to opt-out defeats the point of self-regulation and
leaves the system vulnerable. In addition, the association should endorse a
basic code of ethics and guidelines on transparency, so that providers of news
adhere to a minimum standard.
Finally, it is important that this association or advisory body has real
punitive powers. The threat of real and meaningful sanctions beyond fines which
may not even register with corporate-sponsored entities, must be used to ensure
Written By: Prakriti Bhagat,
High court of Rajasthan (Jaipur Bench)
Phone no. - 9352793557
Authentication No: JL30564767247-24-720