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Published : June 16, 2010 | Author : mayukhgupta
Category : Constitutional Law | Total Views : 19642 | Rating :

Mayukh Gupta, a student of 4th year B.A.,LLB(Hons.)Bengal Law College affiliated to the University of Burdwan.

"The press [is] the only tocsin of a nation. [When it] is completely silenced... all means of a general effort [are] taken away." --Thomas Jefferson

Freedom of the press is the freedom of communication & expression through vehicles including various electronic media & published materials. While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other protection.1

The Indian Press has a long history right from the times of British rule in the country. The British Government enacted a number of legislations to control the press, like the Indian Press Act, 1910, then in 1931-32 the Indian Press (Emergency) Act etc. During the Second World War (1939-45), the executive exercised exhaustive powers under the Defence of India Act & enforced censorship on press. At the same time the publication of all news relating to the Congress activities declared illegal.

In the Post-Constitutional Era, there is a change in the outlook. The Constitution of India in Article 19(1) (a) lays down that “All citizens shall have the right, to freedom of speech & expression.” Unlike, the U.S. Constitution, the Indian Constitution does not expressly provide freedom of press. However, it is now well settled that the words “speech & expression” in Article 19(1) (a) includes freedom of press also.2 The freedom of press means freedom from interference from authority which would have the effect of interference with the content & circulation of newspapers.3 The Article 19(1) (a) of the Constitution is subject to certain restrictions laid down in Article 19(2) of the Constitution.

Position in U.S.A
Freedom of Press is also recognized by the American Constitution. Initially, the freedom of press was not expressly provided in the American Constitution. The freedom of press was inserted only after the First Amendment of the American Constitution. The Amendment prohibited the U.S. Congress from making laws which infringes the freedom of press. The First Amendment of the U.S. Constitution was influenced by the Virginian Declaration of Rights.

Position in U.K.

The Parliament is sovereign in the United Kingdom. Unlike, the U.S., India & other states the subjects of U.K. does not possess any guaranteed rights. The freedom of press is also well recognized in the U.K. The citizens have full liberty to do anything up to the extent that it does not violate the rule of common law or statute law.

Status of Freedom of Press in India
In Romesh Thapar v/s State of Madras,4 Patanjali Shastri,CJ, observed that “Freedom of speech & of the press lay at the foundation of all democratic organization, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” In this case,5 entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of little value”.

The Hon’ble Supreme Court observed in Union of India v/s Association for Democratic Reforms6 , “One-sided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”. In Indian Express Newspapers v/s Union of India,7 it has been held that the press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements. They are:
1. freedom of access to all sources of information,
2. Freedom of publication, and
3. Freedom of circulation.

There are many instances when the freedom of press has been suppressed by the legislature. In Sakal Papers v/s Union of India,9 the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v/s Union of India,10 the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court also rejected the plea of the Government that it would help small newspapers to grow.

Restrictions on Freedom of Press in India
The freedom of press comes within the ambit of freedom of speech & expression. In a democracy, freedom of press is highly essential as it (the press) acts as a watchdog on the three organs of a democracy viz. the legislature, the executive & the judiciary. But, the freedom of press is not absolute in nature. It is subject to certain restrictions which are mentioned in Article 19(2) of the Constitution. The following are the grounds of restrictions laid down in Article 19(2) :-

1) Sovereignty & Integrity of India
2) Security of the State
3) Friendly relations with Foreign States
4) Public Order
5) Decency or Morality
6) Contempt of Court

The grounds of ‘Public Order’ & ‘Friendly relations with Foreign States’ was added by the Constitution (First Amendment) Act,1951. While the ground of ‘Sovereignty & Integrity of India’ was added by the Constitution (Sixteenth Amendment) Act, 1963.

Section 124A of the Indian Penal Code deals with the offence of sedition. It lays down that,” Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”. But Explanation 3 says “Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”. In Devi Saran v/s State AIR 1954 Pat 254, the Court has held that Section 124A imposes reasonable restriction on the interest of public order & therefore it is protected under Article 19 (2) of the Constitution.

Current Scenario of Press & Its Achievements
As discussed earlier, press is regarded as one of the pillars of a democracy as it acts as a watchdog of the three organs of democracy. Though, freedom of speech & expression (including of press) is enjoyed by the citizens but there are many instances where the press has to face difficulties as well. In the recent past, in the Tehelka Case, the portal Tehelka.com was forced to shut down completely & its journalists were continuously harassed as the journalists exposed the ‘scam’ in the defence ministry involving Ex-Defence Personnel & Central Government Ministers. There are many instances where journalists were threatened & even assaulted at times.

Despite of these difficulties the press has achieved a lot of success in the recent past. In Jessica Lal’s case, Manu Sharma, son of a Haryana minister, killed Jessica on April 29, 1999, because she refused to serve him liquor in the restaurant where she was working. The case was closed and all the accused were freed due to lack of evidences, but finally, the case was reopened after media and public outcry, which led to Sharma’s conviction. In Priyadarshini Mattoo’s Case, Santosh Kumar, son of an IPS officer raped and killed his colleague, Priyadarshini Mattoo, a law student in 1996, after she refused his proposal. Ailing and aged father of Priyadarshini got judgment in October 2006, after a long run trial. The Delhi High Court rebuked lower courts and authority under investigation for acquittal of accused. The media played a significant role in this case as well.Similary,in Nitish Katara’s case the media played an important role. In Aarushi Talwar’s murder case, media played an important part by highlighting the loopholes in the case owing to which the police was forced to take some action. Aarushi’s father is the prime suspect in this case.Recently, in Ruchika’s Case, Ruchika Girhotra, a 14-year-old tennis player, was molested by then Haryana police IG S.P.S. Rathore in Panchkula in 1990.Three years later, Ruchika killed herself, which her friend and case witness Aradhana attributes to the harassment of Ruchika and her family by those in power. Nineteen years later, Rathore walks away with six months of rigorous imprisonment and a 1000-rupee fine, reportedly due to his old age and the “prolonged trial”. This led to public outrage & media played a significant role in it. Later on the Government of India asked the Central Bureau of Investigation to re-investigate the case & the police medals awarded to S.P.S. Rathore was also stripped. A case of Abetment of Suicide under Section 306 of the IPC was also filed against S.P.S.Rathore.In 2005 news channel Aaj-Tak carried out Operation Duryodhana which revealed 11 MP’s of the Lok Sakha accepting cash for asking question in the Lok Sabha. Later on an Investigation Committee was set up headed by Senior Congress MP Pawan Kumar Bansal. All the 11 MP’s were found guilty & were sacked from the Lok Sabha.

Press needs to be Responsible
Though, the press has played significant roles for public welfare but at times it act irresponsibly. For instance the electronic media hyped the Abhi-Ash wedding in such a way that other important news were neglected. In Prof. Sabharwal’s case, when Prof. Sabharwal was killed by ABVP activists, there were a number of news channels & newspaper correspondent were present & they had evidence of the murder but the media acted irresponsibly & the police called it an ‘Open & Shut Case’. Recently, when Mumbai was under terror threat in 26/11 the media acted irresponsibly by telecasting live the long sisty hour Operation Black Tornedo by the security forces to combat the attack at The Taj Mahal Palace Hotel & Nariman House. It included live feed of air dropping NSG Commandoes on the rooftop of Nariman House. At times news channel covers news such as ‘Bollywood Gossips’ & ‘Page 3’ etc which has reduced them to a mere ‘Entertainment Channel’. There are many important issues which should be covered by the media but unfortunately it does not. In April 2009, Union Home Minister P.Chidambaram was addressing the media at a press conference a journalist threw show at the minister on protest of acquittal of a Congress leader accused of leading Anti-Sikh riots in 1984. The journalist named Jarnal Singh was a reporter of Dainik Jagran, a local newspaper. Later on he apologized to the Union Home minister for his act. This was one of the most condemnable act which showed the ugly side of the press.

In words of the Father of the Nation Mahatma Gandhi, "The role of journalism should be service. The Press is a great power, but just as an unchained torrent of water submerges the whole countryside and devastates crops, even so an uncontrolled pen serves but to destroy." There are three pillars of a democracy viz. the legislative, the executive & the judiciary. The press acts as the fourth pillar of a democracy. The press has played many significant roles in delivering justice, public welfare etc.

The National Commission to Review the Working of the Constitution (NCRWC) has in its final report submitted to the Government recommended that Article 19(1)(a) which deals with “freedom of speech & expression” must expressly include the freedom of the press and other media, the freedom to hold opinion and to seek, receive and impart information and ideas.

It has been sixty years since India became Republic & commencement of the Constitution there is been a lot of ups & down in our democracy & the press also has come across age. As being a subject of the largest democracy of the world we should remember the words of our former Prime Minister Rajiv Gandhi, “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.”

Thus, we can conclude that the time has come for the press of largest democracy of the world to work with hand-in-hand with judiciary for the welfare of its subjects. The day is not far away when there will be no eclipse of injustice & the sun of justice will shine brightly forever.

· Basu, Dr Durga Das, Case Book on Indian Constitutional Law, 2nd ed. (2007), Kamal Law House, Kolkata.
· Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency, Allahabad.
· Gaur, K.D., Textbook on The Indian Penal Code, 4th ed. (2010), Universal Law Publishing Co., Delhi.
· Rai, Kailash, the Constitutional Law of India,7th ed. (2008), Central Law Publications, Allahabad
· Tiwari, Dr. Mahendra, Freedom of press in India: Constitutional Perspectives, (2006)
· http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm accessed on 24th January 2010.
· Halsbury’s Law Monthly, Vol.3, Issue 02, February 2009

1. http://en.wikipedia.org/wiki/Freedom_of_the_press #England accessed on 19th January 2010.
2. Indian Express Newspapers v/s Union of India AIR 1986 SC 515.
3. Sakal Papers Ltd. v/s Union of
4. AIR 1950 SC 124.
5. Romesh Thapar v/s Union of India AIR 1950 SC 124.
6. (2002) 5 SCC 294.
7. (1985) 1 SCC 641.
8. M.S.M. Sharma v/s Sri Krishna Sinha, AIR 1959 SC 395.
9. AIR 1962 SC 305.
10. AIR 1973 SC 106; (1972) 2 SCC 788.

Authors contact info - articles The  author can be reached at: mayukhgupta@legalserviceindia.com

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Article Comments

Posted by hemanshi on September 24, 2010
i read the information its very nice. can you send this information in my mail ,so that iwill forwad it to my classmates

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