Freedom of Press In India

SUB: Business Law 2.6

Freedom Of Press In India 2010

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Freedom Of Press In India 2010

Acknowledgement We would like to express our profound gratitude to our project guide Prof, who has so ably guided our research project with her vast fund of knowledge, advice and constant encouragement, which made us, think past the difficulties and lead us to successful completion of the project.

We have tried to cover all the aspects of the project & every care has been taken to make the project faultless. We have tried to write the project in our words as far as possible and simplified all the concepts by presenting it in a different form. We’ll be looking forward in future for such type of project. We are eagerly waiting for fruitful comments & constructive suggestions.

THANKING YOU

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Freedom Of Press In India 2010

Contents 1.

FREEDOM OF PRESS IN INDIA: ‘AN OVERVIEW’ ...................................................... 5

i. INTRODUCTION ........................................................................................... 5 2.

CONSTITUTIONAL HISTORY OF INDIAN PRESS FREEDOM .............................................. 8

3.

FREEDOM OF PRESS IN INDIA: CONSTITUTIONAL PERSPECTIVES ................................... 9

4.

CONSTITUTIONAL PROVISIONS IN U.S., U.K. AND SWEDEN......................................... 14

i. FREEDOM OF PRESS IN THE U.S. ....................................................................... 14 ii. FREEDOM OF PRESS IN U.K. ............................................................................. 14 5.

AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS AND OTHER LEGISLATIONS REGULATING FREEDOM OF PRESS IN INDIA ................................................................ 16

6.

PRESS FREEDOM -CURRENT SCENARIO ....................................................................... 20

7.

PRESS NEEDS TO IMPROVE ........................................................................................ 23

8.

FREEDOM OF PRESS — AREAS OF REASONABLE RESTRICTIONS .................................. 26

9.

CONCLUSION AND SUGGESTIONS .............................................................................. 29

10. FREE PRESS IMPORTANT - BBC POLL SHOWS .............................................................. 31 i. SUGGESTIONS ................................................................................................ 32 11. END NOTES ................................................................................................................ 33 12. WORKS CITED ......................................................................................................... 35

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Freedom Of Press In India 2010

FREEDOM OF PRESS IN INDIA: ‘AN OVERVIEW’ INTRODUCTION In Tamil Nadu where six journalists were sentenced to 15 days simple imprisonment for alleged breach of privilege and contempt by the state Legislative Assembly brings back the not so pleasant memories of the Emergency. There is a saying that those who forget history are wont to repeat it. The action was condemnable as the intent of those who passed the judgment is itself, questionable. The threat to freedom of the press in this country or for that matter in all of Asia hangs like the proverbial sword of Damocles. In India, no political party can boast of respecting the freedom of the press. There have been numerous instances of newspaper offices being vandalized and editors and journalists being roughed up by political flunkeys for publishing articles that were critical of their leaders whose credentials were suspect, to say the least. This sorry state of affairs has increased in recent years. Not long ago, an article published by Alex Perry, a foreign journalist, on the then Prime Minister Vajpayee's fitness, thereby questioning his ability to lead the nation, considerably angered the then ruling party. The press is considered the watchdog of democracy. Sadly, there is scant regard for this truism in a country which is, ironically, the world's largest democracy. Self-discipline, which is so crucial for the survival of any democracy, is fast disappearing from the Indian polity. Tolerance levels are declining and arrogance is all-pervasive. More often than not political power is used to further the cause of the power-hungry rather than to serve the masses. When obedience to the enforceable is itself neglected, obedience to the unenforceable is out of the ~5~

Freedom Of Press In India 2010

question. Even after more than Six decades of Independence, democracy in India has still not matured and the quality of public life is declining alarmingly. Today, political leaders are voted to power because of their oratory and manipulative skills and not for their wisdom and virtue. We cannot expect better governance if we continue to elect people with criminal track records and ill intentions. Fortunately, the Indian citizen can depend on a strong judiciary, which has so often come to the rescue. The press, on its part, should bear in mind that freedom of the press does not mean a license to write anything. This freedom is precious and it has to be used judiciously. When this freedom is misused, public respect for this profession will diminish. The press has to guard against this. Indian press has a long and chequered history spreading over the last two hundred years. There were a series of enactment, ever since the East India Company directed against the press. Unlike the first amendment of the U.S. Constitution, Article 19(I) (a) speaks of freedom of speech and expression and does not specially mention freedom of press. Dr. B.R. Ambedkar stressed that the freedom of expression includes freedom of the press. He said the press is merely another way of stating an individual or a citizen.1 The constitution guaranteed the fundamental right to freedom of expression, and the Supreme Court of India lost no time in declaring that the freedom of the press was included in that guarantee2. Justice Patanjali Shastri in one of the earliest cases on the press freedom, namely, Romesh Thapper vs. State of Madras3 underlined the special role of the press in a democratic organisation. In the Express Newspapers Case4 justice N.H. Bhagwati said that the fundamental right to freedom of speech and expression enshrined in our constitution is based on the provisions in First Amendment of the constitution of the United States….and it would, therefore, be legitimate and proper to refer to those decisions of the Supreme Court of the United States of America…He, in fact reviewed the important American decisions and applied those principles in interpreting Article 19(I) (a) 5. ~6~

Freedom Of Press In India 2010

In Indian Express Newspapers Pvt. Ltd. vs. Union of India6, Justice E.S. Venkataramiah said that Freedom of Press must be considered as a “basic structure” of the constitution. The press is a responsible part of a democratic society. It should provide the public with an intelligent narration of the day’s events, set in a context which gives them meaning. It must also clarify the values of society and present a clear picture of its goal7. Justice Jeevan Reddy and Justice B.N. Hansaria in the Printers

(Mysore) Limited vs. State of Karnataka reiterated “freedom of press has always been a cherished right in all democratic countries. The democratic credentials of a State are judged today by the extent of freedom the press enjoys in that state.”8 Freedom of Press carries different meanings for different people. But freedom of press cannot be absolute. There must be boundaries to it and realistic discussion concerns where these boundaries ought to be set9. Freedom of press did not confer on the press any right to have an unrestricted access to the means of information.10

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CONSTITUTIONAL HISTORY OF INDIAN PRESS FREEDOM

Democracy can flourish only where its citizens enjoy full freedom of speech and expression subject only to reasonable restrictions. Hence due to this anxiety only the press council of India was born in 1954. But if, we look to the historical background of the Media law, we will find that, it was as early as in 1799 that first time, Lord Wellesley promulgated the “Press Regulations”, which had the effect of imposing pre-censorship on an infant newspaper publishing industry. Thereafter, in 1835 the “Press Act” was passed. Then in 1857 the government passed the ‘Gagging Act’, which among various other things, introduced compulsory licensing for the owning or running of printing presses; empowered the government to prohibit the publication or circulation of any newspaper, book or other printed material and banned the publication or dissemination of statements or news stories which had a tendency to cause a furor against the government, thereby weakening its authority. The process continued, but the constitution makers brought the most significant change, by inserting Article 19 (1) (a) in the part III, as fundamental right of the constitution. This speaks about the freedom to express & expression. This only led to the formation of Press Council of India. Although, the Indian Constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1) (a). Keeping this in mind Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India11 has stated: “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. 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.” ~8~

Freedom Of Press In India 2010

The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.

Freedom of press in India: Constitutional Perspectives ~9~

Freedom Of Press In India 2010

The Freedom of press includes more than merely serving as a “neutral conduit of information between the people and their elected leader or as a neutral form of debate”. In India before Independence, there was no constitutional or statutory guarantee of freedom of an individual or media/press. At most, some common law freedom could be claimed by the press, as observed by the Privy Council in Channing Arnold v. King Emperor: “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 law 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.” With object and views, the Preamble of the Indian Constitution ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression”. The present study is intended to present the provisions of the Indian Constitution and other national instruments which recognise the freedom of press as an integral part of the freedom of speech and expression, the basic fundamental rights of human being. It is also to be examined how far freedom of press has constitutional significance in achieving the free, fair and real democracy. The study also covers the view taken by the Hon’ble Supreme Court on the subject. The main object of providing guaranteed freedom of press is for creating a fourth institution beyond the control of State authorities, as an additional check on the three official branches—the executive, the legislature and the judiciary. It is the primary function of the press to provide comprehensive and objective information on all aspects of the country’s social, economic and political life.

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For achieving the main objects, freedom of the press has been included as part of freedom of speech and expression which is a universally recognised right adopted by the General Assembly of the United Nations Organization on 10th December, 1948. The heart of the declaration contained in Article 19 says as follows: “Everyone 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 of frontiers.” The same view of freedom of holding opinions without interference has been taken by the Supreme Court in Union of India v. Assn. for Democratic Reforms in which the Court has observed as follows: (SCC p. 317, Para 38) “[O]ne-sided information, disinformation, misinformation and noninformation, 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 India, freedom of press is implied from the freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution of India. Article 19(1) (a) says that all citizens shall have the right to freedom of speech and expression. But this right is subject to reasonable restrictions imposed on the expression of this right for certain purposes under Article 19(2). Article 19(1) (a) corresponds to the First Amendment of the United States Constitution which says, “congress shall make no law… abridging the freedom of speech or of the press”. The provision in the US Constitution has two notable features i.e.: 1. freedom of press is specifically mentioned therein, 2. No restrictions are mentioned on the freedom of speech. But the Supreme Court of India has held that there is no specific provision ensuring freedom of the press separately. The 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 ~ 11 ~

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specifically by law), as such, as distinct from those of any other citizen. Freedom of the press has three essential elements. They are: 1. freedom of access to all sources of information either of one’s own views or borrowed from someone else or printed under the direction of the person, 2. Freedom of publication and freedom of circulation. Freedom of speech is the bulwark of democratic Government. In a democracy, freedom of speech and expression opens up channels of free discussion of issues. It implies that there should be a close link between the Government and the people. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. Similarly, the persons in power should be able to keep the people informed about their policies and projects, therefore, it can be said that freedom of speech is the mother of all other liberties. Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India has stated: “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. 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 above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India. ~ 12 ~

Freedom Of Press In India 2010

In Printers (Mysore) Ltd. v. CTO the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy. The fundamental principle which was involved in freedom of press is the “people’s right to know”. It therefore received a generous support from all those who believe in the free flow of the information and participation of the people in the administration; it is the primary duty of all national courts to uphold this freedom and invalidate all laws or administrative actions which interfere with this freedom, are contrary to the constitutional mandate. In R. Rajagopal v. State of T.N. the Supreme Court of India has held that freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution. Therefore, in view of the observations made by the Hon’ble Supreme Court in various judgments and the views expressed by various jurists, it is crystal clear that the freedom of the press flows from the freedom of expression which is guaranteed to “all citizens” by Article 19(1) (a). Press stands on no higher footing than any other citizen and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen. The press cannot be subjected to any special restrictions which could not be imposed on any citizen of the country.

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CONSTITUTIONAL PROVISIONS IN U.S., U.K. AND SWEDEN

Freedom of Press in the U.S. 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”.12

Freedom of Press in U.K. In U.K., since Parliament is sovereign, the subjects cannot possess guaranteed rights such as are guaranteed to the citizens of USA, India and many other countries. The right of freedom of speech or discussion, which means that the person may write or say as he pleases, has been well reorganized in England. A subject may say or do what he pleases, provided he does not transgress the substantive law. Or infringe the legal rights of others. A citizen has completed liberty to do anything unless the public authority by some rule of common law or statute law prevented his action.

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Freedom Of Press In India 2010

Freedom of Press in Sweden Swedish Constitution is one of the few other Constitutions which have 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 a 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 press freedom.13

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Freedom Of Press In India 2010

AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS AND OTHER LEGISLATIONS REGULATING FREEDOM OF PRESS IN INDIA 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 14 democracy.” 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.”15 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 ~ 16 ~

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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 Thapper v State of Madras16 the Supreme Court struck down as violating Article 19(1) (a), the Madras ~ 17 ~

Freedom Of Press In India 2010

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 vs. State of Delhi17 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 (beyond the legal capacity of a person, company, or other legal entity) 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.18 ~ 18 ~

Freedom Of Press In India 2010

Brij Bhushan vs. State of Delhi19 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 Article19 (1) (a). The Supreme Court held in the Auto Shankar case that the government has no authority in law to impose a prior restraint upon publication of defamatory material against its officials.20 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 Article19(2).21 Freedom of press is also both qualitative and quantitative.22 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.”23 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.’ Article 19 of Universal Declaration of Human Rights is recognized and followed in India, which states that: “Everyone 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.” ~ 19 ~

Freedom Of Press In India 2010

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 have 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 defense department involving ex defense 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 problem24 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 ~ 20 ~

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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”25 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 no 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.26 But as we see, in the ‘Reference Case’27, it has not been possible for Supreme Court to maintain this proposition in to, 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. Meanwhile 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 (ret.) 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.” ~ 21 ~

Freedom Of Press In India 2010

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) or 194(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.

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PRESS NEEDS TO IMPROVE

It may be asked: Would this be enough to ensure that the Press is left genuinely free to carry out the functions that it must perform? Would it not be necessary to think of some other, more positive, steps to ensure that the press does not remain a hand-made of only the powerful in the country?

The inadequacies of the Indian Press need not be connived at. There is no doubt that private business- and those who control it- are treated by most newspapers with kid gloves. This is partly because of the ownership of many newspapers and therefore the philosophy of those who are appointed to senior journalistic positions. The trade union side of industrial disputes, the approach of the political parties on the left side of the political spectrum and the difficulties of the unprivileged and the dispossessed have received far less attention than other smaller but influential sections and vested interests in the vast bulk of our newspapers. It should, however, be said that the situation is changing for the better. Competitions, and also the increasing influence of professional journalists, are making it difficult for newspapers to ignore these various aspects. It is well known that the bindings at Bhagalpur, the treatment of workers as bonded servants by many landed interests, the exploitation of child labour in slate factories, or of female labour in BIDI factories or even of adult workers in asbestos factories have been brought to light not by small newspapers but by large ones which are many times dubbed by critics as belonging to the Monopoly or the Jute Press category. This tendency shows that to the extent that at least some degree of competition can be ensured in every circulation area chances are that there would be a fair degree of investigation of different types of events28. ~ 23 ~

Freedom Of Press In India 2010

A part of the answer to the difficulties lies in making it possible for independent newspapers and especially periodicals to operate without too much handicap. But, even then, such newspapers may not be as successful as the large ones operated as capitalist undertakings. Their workers, including journalists, may have to work at a sacrifice. But unless there are elements in the country which are ready to work with self-sacrifice and zeal for causes in which they believe, new and unorthodox ideas cannot develop and new political groups cannot emerge. There have been examples of such efforts such as the daily Shramik Vichar run by some trade union groups in Pune. There was even an attempt at running a paper devoted to the requirements of the district of Pune which however did not continue for long. Real entrepreneurship in this field would consist of such efforts and, except for direct and discretionary subvention, various other steps can be taken to help the whole category of such newspapers and periodicals. This would make it possible for the larger newspapers to be kept on their toes. Even though investigative journalism is fast developing in India, the quality of the Indian Press in many respects leaves much to be desired. Even though, as a result of various awards, the emoluments of journalists have considerably improved in the last few years, adequate talent is not still attracted to this field. There is also a great deal of lethargy which leads to large scale reproduction of speeches as well as gossip from the corridors of power instead of well-organized news. The tendency even of some of our top newspapers to rely on articles from the foreign Press when dealing with world affairs shows a lack of initiative in developing Indian talent for analyzing world problems from the Indian point of view.29 With some exceptions, there has also not been enough effort to develop interest in news, other information and comments on aspects of life other than politics, crime and sports. Investigative news collection can be of great use in matters like the operation of Plan programmes and projects. In some newspapers, useful reports of investigations in sectors like power and irrigation have recently appeared. But this is still experimental and confined only to a few papers. Such inadequacies can be overcome only with better training, more competition and greater professionalization. There are no short-cut remedies for this.30 ~ 24 ~

Freedom Of Press In India 2010

The most serious inadequacy relating to the Indian Press is to be found in newspapers published in Indian languages. Most of them are poorer in quality as compared to newspapers in English. This is so even in respect of Indian language papers belonging to same groups. This obviously happens because the managements of such groups continue to think that the prestige of the group depends more on the English language newspapers than on the Indian language ones. It is quite obvious that the number of those proficient in English will not expand as rapidly as that of the literate in various Indian languages. The demand for Indian language newspapers is already expanding faster and this trend will be further accelerated in future. As the number of legislators who understand English declines, it is essential in public interest and for the proper functioning of our democracy that the quality of the more important Indian language newspapers improves rapidly. Special steps such as the development of teleprinter services in Indian languages and support to the adaptation of the best techniques for printing Indian language newspapers should be taken by the Government so as to help.31

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Freedom of press — areas of reasonable restrictions Lord Denning in his book Road to Justice observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour. The dangers of the unanalyzed discretion given to Lok Adalats have been recognised by some States and pursuant to Section 28 of the Legal Services Authorities Act; Regulations have been framed in relation to the conduct of Lok Adalats. The Kerala Regulations, 1998, framed by the Kerala Legal Services Authority (KELSA), provide a model of good practice. Regulation 28 makes it mandatory for notice to be issued to the parties in a dispute in order to enable them to prepare their case. This embodies the right to a fair hearing. Regulation 31 explicitly lays down that the Bench is to restrain itself to a conciliatory role and make efforts to bring about a settlement “without bringing about any kind of coercion, threat or undue influence, allurement or misrepresentation”. Under Regulation 33, the Bench is required to obtain the signatures of the parties to the dispute, in addition to the signatures of the Members of the Bench. This Regulation ensures that the parties are given adequate notice and are present during the proceedings. It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds: 1. security of the State, 2. friendly relations with foreign States, 3. public order, 4. decency and morality, 5. contempt of court, 6. defamation, 7. incitement to an offence, and ~ 26 ~

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8. Sovereignty and integrity of India. Grounds contained in Article 19(2) show that they are all concerned with the national interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are all grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are all concerned with the interest of the society. As we concern with the restrictions imposed upon the media, it is clear from the above that a court evaluating the reasonableness of a restriction imposed on a fundamental right guaranteed by Article 19 enjoys a lot of discretion in the matter. It is the constitutional obligation of all courts to ensure that the restrictions imposed by a law on the media are reasonable and relate to the purposes specified in Article 19(2). In Papnasam Labour Union v. Madura Coats Ltd. the Hon’ble Supreme Court has laid down some principles and guidelines to be kept in view while considering the constitutionality of a statutory provision imposing restriction on fundamental rights guaranteed by Articles 19(1)(a) to (g) when challenged on the grounds of unreasonableness of the restriction imposed by it. In Arundhati Roy, In re the Hon’ble Supreme Court has considered the view taken by Frankfurter, J. in Pennekamp v. Florida in which Judge of the United States observed: (US p. 366) “If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise.” In Rajendra Sail v. M.P. High Court Bar Assn. the editor, printer and publisher and a reporter of a newspaper, along with the petitioner who was a labour union activist, were summarily punished and sent to suffer a six months’ ~ 27 ~

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imprisonment by the High Court. Their fault was that on the basis of a report filed by a trainee correspondent, they published disparaging remarks against the judges of a High Court made by a union activist at a rally of workers. The remarks were to the effect that the decision given by the High Court was “rubbish” and “fit to be thrown into a dustbin”. In appeal the Supreme Court upheld the contempt against them, but modified and reduced the sentence. In D.C. Saxena (Dr.) v. Chief Justice of India the Hon’ble Supreme Court has held that no one else has the power to accuse a judge of his misbehaviour, partiality or incapacity. The purpose of such a protection is to ensure independence of judiciary so that the judges could decide cases without fear or favour as the courts are created constitutionally for the dispensation of justice. By these above observations and the judgment we can say that restrictions imposed by Article 19(2) upon the freedom of speech and expression guaranteed by Article 19(1)(a) including the freedom of press serve a two-fold purpose viz. on the one hand, they specify that this freedom is not absolute but are subject to regulation and on the other hand, they put a limitation on the power of a legislature to restrict this freedom of press/media. But the legislature cannot restrict this freedom beyond the requirements of Article 19(2) and each of the restrictions must be reasonable and can be imposed only by or under the authority of a law, not by executive action alone.

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CONCLUSION AND SUGGESTIONS

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 (ret.) 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 there is need to codify privileges. “It is important to safeguard the freedom of speech and expression and the freedom of the press as it is central to the survival of democracy,” observed Mumbai High Court Chief Justice F T Rebello. 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 citizens’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. It has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be mis-understood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists. In an organised society, the rights of the press have to be recognised with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings. If a newspaper publishes what is improper, mischievously false or illegal and abuses its liberty it must be punished by Court of ~ 29 ~

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Law. The Editor of a Newspaper or a journal has a greater responsibility to guard against untruthful news and publications for the simple reason that his utterances have a far greater circulation and impact then the utterances of an individual and by reason of their appearing in print, they are likely to be believed by the ignorant. Therefore, certain restrictions are essential even for preservation of the freedom of the press itself. To quote from the report of Mons Lopez to the Economic and Social Council of the United Nations “If it is true that human progress is impossible without freedom, then it is no less true that ordinary human progress is impossible without a measure of regulation and discipline”. It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression. Further, due regard has to be given to the recommendations made by the National Commission to Review the Working of the Constitution [NCRWC]. 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 defense. At this juncture, as we are approaching the sixth decade of our freedom, let’s 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.” Thus we can say the judiciary and media bodies seem to on the same wavelength. Both want the press free from governmental interference, neither are opposed to regulations but both are averse to restrictions on freedom of press. What is required is a consultation with these market players and the public, keeping the primary objective of informing the public in mind and the formulation of a viable policy. ~ 30 ~

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Free press important - BBC poll shows World opinion is divided on the importance of having a free press, according to a poll conducted for the BBC World Service. Of those interviewed, 56% thought that freedom of the press was very important to ensure a free society. But 40% said it was more important to maintain social harmony and peace, even if it meant curbing the press’s freedom to report news truthfully. Pollsters interviewed 11,344 people in 14 countries for the survey. In most of the 14 countries surveyed, press freedom (including broadcasting) was considered more important than social stability.

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Suggestions In democracy, the Government cannot function unless the people are well informed and free to participate in public issues by having the widest choice of alternative solutions of the problems that arise. Articles and news are published in the press from time to time to expose the weaknesses of the governments. The daily newspaper and the daily news on electronic media are practically the only material which most people read and watch. The people can, therefore, be given the full scope for thought and discussion on public matter, if only the newspapers and electronic media are freely allowed to represent different points of views, including those of the opposition, without any control from the Government. The following suggestions are offered in this connection: 1. Freedom of press may be inserted as a specific fundamental right under Article 19 of the Constitution of India.

2. Parameters of freedom of press should be clearly earmarked.

3. Information must be available at an affordable cost within specified, definite and reasonable time-limits.

4. Free press should not violate right to privacy of an individual.

5. Free press must be law enforcing and preventive of crime.

6. Rule of law must be followed by the free press.

7. Influence through free press upon the judiciary should not be exercised.

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END NOTES 1. 2. 3. 4.

Constitutional Assembly Debates, Vol. VII, p. 780 (2.12.1948) Durga Das Basu, Law of Press in India (1980) p. 23. 1950 INDLAW SC 9 Express Newspapers (Pvt.) Ltd. vs. Union of India 1958 INDLAW SC 3

5. The principles are: freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and the antagonistic sources is essential to the welfare of the public; such freedom is the foundation of free government of a free people; the purpose of such a guarantee is to prevent public authorities from assuming the guardianship of the public mind; and Freedom of press involves freedom of employment and non-employment of the necessary means of exercising this right or in other words, freedom from restriction in respect of employment in the editorial force. It is interesting to note that the Supreme Court had warned against the application of American cases in Travancore- Cochin vs. Bombay Co. Ltd, A1952 INDLAW SC 88; State of Bombay vs. R. M. D. Chamarbaugwala, 1957 INDLAW SC 153; Bhagwati’s opinion in Express Newspapers case was overruled by the supreme court in Santokh Singh vs. Delhi Administrator, 1973 INDLAW SC 82. 6. 1984 INDLAW SC 1 7. Indian Press Commission Report, (1954) p. 339. 8. AIR 1994 S.C. 23 See Times of India, February 12, 1994. 9. Royal Commission on the Press, final report (1977), pp. 8-9, ‘Dimensions of press freedom’, Indian Press, Vol. V No. 12, December 1978 pp. 9-12. 10.Smt. Prabha Dutt vs. Union of India, 1981 INDLAW SC 75 11.1984 INDLAW SC 1 12.www.law.cornell.edu/constitution/constitution.overview.html 13.Ibid. 14.Vide Author’s Commentary on the Constitution, 6th Ed,Vol C, pg 95-97; Indian Express Newspapers (Bombay) Private Limited vs. Union of India 1984 INDLAW SC 1 15.In Re : Harijai Singh and Another In Re : Vijay Kumar 1996 INDLAW SC 2426 16.1950 INDLAW SC 9 17.1950 INDLAW SC 8 18.Ibid. ~ 33 ~

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19.Ibid. 20.R. Rajagopal Alias R. R. Gopal vs. State of Tamil Nadu 1994 INDLAW SC 832 21.Sakal Papers Private Limited vs. Union of India 1961 INDLAW SC 429 22.Bennett Coleman and Co vs. Union of India 1972 INDLAW SC 337 23.Indian Express Newspapers vs. Union of India 1984 INDLAW SC 1 24.http://www.thehindu.com/2003/11/14/stories/2003111401331000.html 25.as has been described by Mr. Johann .P. Fritz, Director of International Press Institute 26.Pandit M. S. M. Sharma vs. Shri Sri Krishna Sinha 1958 INDLAW SC 135 27.1964 INDLAW SC 447 28.http://www.deccanherald.com/deccanherald/oct05/da1.aspf 29.http://www.pucl.org/from-archives/Media/freedom-press.htm 30.Ibid. 31.http://www.hindustantimes.com/news/printedition/011002/detFRO02.sht mlf 32.http://www.deccanherald.com/deccanherald/oct05/da1.asp

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WORKS CITED 1. http://www.projectsmonitor.com/detailnews.asp?newsid=7175 2. www.worldpressfreedomday.org/ 3. http://www.nowpublic.com/life/free-press-important-bbc-poll-shows-0 4. http://en.wikipedia.org/wiki/Freedom_of_the_press#India 5. http://en.wikipedia.org/wiki/Freedom_of_the_press_in_the_United_States 6. http://www.rsf.org/index.php?page=rubrique&id_rubrique=2 7. http://en.wikipedia.org/wiki/Press_Freedom_Index

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