Constitutional Law Project on

Freedom of Press

Made by: Anirudh Arora Roll No.-12 IVth Semester

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CONTENTS
1) Index of Authorities.3 2) Acknowledgement ..6 3) Freedom of Press- An Overview.7 4) Freedom of Press in India8 5) Sakal Papers case...17 6) Bennett Colemans case..19 7) Indian Express case.21 8) Hindustan Times case.24 9) Restrictions.30 10) Conclusion and suggestions.39 11) Bibliography.40

INDEX OF AUTHORITIES
BOOKS REFERRED: 1. Press Act, by Durga Basu. 2. Arlidge, Eady & Smith On Contempt. 3. Indian Constitutional Law, by M.P. Jain 4. Kashmir University Law Review 5. Freedom of the Press and the Law of Contempt 6. The Contempt of Courts Act,1971 7. Press and Contempt of Court

Precedents and Judgments: New York Times v. Sullivan, 376 U.S. 254 New York Times Company v. United States, 403 U.S. 713 (1971) Terminiello v. Chicago, 337 U.S. 1. Mills v. Alabama, 384 U.S. 214. Beauharnais v. Illinois, 72 S. Ct. 1070. Sakal Papers v. Union of India, AIR 1962 SC 305 Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515 at 527. Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer (1994) 2 SCC 434. Brij Bhushan v. Delhi, AIR 1950 SC 129. Virendra v. State of Punjab AIR 1957 SC 896

Romesh Thapar v. State of Madras, AIR 1950 SC 124 Olivier v. Buttigieg (1966) 2 All. E.R. 459. R. Rajagopal v. State of T.N. (1994) 6 SCC 632 D.C. Saxena (Dr.) v. Chief Justice of India 1996 SCC (7) 216 Maneka Gandhi v. Union of IndiaAIR 1978 SC 597 Pennekamp v. Florida(328 US 331 : 90 L Ed 1295 (1946)) Bennett Coleman & Co. v. Union of India AIR 1973 SC 106 Indian Express v. Union of India (1985) 1 SCC 641 M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395 Narain Das Vs. Government of Madhya Pradesh and Ors. AIR 1974 SC 1252 Sushil Sharma v. State (Delhi Administration) & Ors 1996 Crl. LJ 3944 Attorney-General v. B.B.C (1981) AC 303 Hindustan Times v. State of U.P., AIR 2003 SC 250 M.P. Lohia v. State of West Bengal 2005Cri.LJ1416 VishwaDev Sharma v. State of Rajasthan 1993 (4) J.T. 358 Attorney-General v. Chee Soon Juan [2006] SGHC 54 Smt. Prabha Dutt v. Union of India, AIR 1982 SC 6 Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615. Raj Bahadur Gond v. State of Hyderabad, AIR 1953 Hyd 277. In re Arundhati Roy (2002) 3 SCC 343

Conventions, Legislations and Acts 1) The Prevention of Terrorism Act 2002 2) Freedom of the Press. PUCL Bulletin, (People's Union for Civil Liberties). July 1982 3) Spanish Committee of UNICEF in Madrid, Spain 4) Universal Declaration of Human Rights, 1948 5) The Newspaper (Price and Page) Act, 1956. 6) The Daily Newspaper (Price and Page) Order, 1960 7) The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955

ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the almighty for providing me with the authentic circumstances which were mandatory for the completion of my project. Secondly, I am highly indebted to Prof.Asad Malik of Faculty of Law, JamiaMilliaIslamia University, New Delhi for providing me with constant encouragement and guidance throughout the preparation of this project. My cardinal thanks are also for my parents, friends and all teachers of law department in our college who have always been the source of my inspiration and motivation without which I would have never been able to unabridged my project.

AnirudhArora.

FREEDOM OF PRESS AN OVERVIEW In the U.S.A., the First Amendment specifically protects a free press. The view developed by the U.S. Supreme Court is that freedom of press includes more than merely serving as a neutral conduit of information between the people and their elected leaders or as a neutral form of debate. The prime function of the free press guarantee is regarded as creating a fourth institution outside the government as an additional check on the three official branches- executive, legislative and the judiciary.1It is the primary function of the press to provide comprehensive and objective information on all aspects of the countrys social, economic and political life. The press serves as a powerful antidote to any abuse of power by government officials and as a means for keeping the elected officials responsible to the people whom they were elected to serve. The democratic credentials of a state are judged today by the extent of the freedom press enjoys in that state. Douglas, J., of the U.S. Supreme Court has observed that acceptance by government of a dissident press is a measure of the maturity of the nation.2 Suppression of the right of the press to praise or criticize government agents and to clamour and contend for or against change violates the First Amendment by restraining one of the very agencies the framers of the U.S. Constitution selected to improve the American society and to keep it free.3 The freedom of speech and of the press is protected not only from direct government encroachment but also from more subtle government interference. The U.S.

New York Times v. Sullivan, 376 U.S. 254; New York Times Company v. United States, 403 U.S. 713 (1971) (known as the Pentagon Papers case). 2 Terminiello v. Chicago, 337 U.S. 1. 3 Mills v. Alabama, 384 U.S. 214.

Supreme Court has emphasized that it has power to nullify action which encroaches on freedom of utterance under the guise of punishing libel.4 The importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy.

For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and even abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries, while it was not permitted in feudal or totalitarian regimes.

Freedom of press-in India In India, the media have played a historical role in providing information to the people about social and economic evils. The media have informed the people about the tremendous poverty in the country, the suicide of farmers in various States, the so-called honour killings in many places by Khap panchayats, corruption, and so on. For this, the media in India deserve kudos.

Beauharnais v. Illinois, 72 S. Ct. 1070.

However, the media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it. The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement to an offense". Laws such as the Official Secrets Act and Prevention of Terrorist Activities Act5 (PoTA) have been used to limit press freedom. Under PoTA, person could be detained for up to six months for being in contact with a terrorist or terrorist group. PoTA was repealed in 2006, but the Official Secrets Act 1923 continues. For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..."6 With the liberalization starting in the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government. In India, freedom of press is implied from the freedom of speech and expression guaranteed by Art. 19(1)(a). There is no specific provision ensuring freedom of the press as such. The freedom of press is regarded as a species of which freed om of
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"The Prevention of Terrorism Act 2002"

Freedom of the Press. PUCL Bulletin, (People's Union for Civil Liberties). July 1982

expression is a genus.7 Thus, being only a right flowing from the freedom of speech, the freedom of press in India stands on no higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as such distinct from the freedom of the citizen. The Supreme Court has laid emphasis in several cases on the importance of maintaining freedom of press in a democratic society. The press seeks to advance public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Articles and news are published in the press from time to time to expose the weakness of the government. This leads at times to the suppression of the freedom of press by the government. It is, therefore, the primary duty of the Courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with the freedom of the press contrary to the constitutional mandate.8 In Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer,9 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 estate. The democratic credentials of a state are judged by the extent of freedom of the press enjoys in that state. The Supreme Court has emphasized that the freedom of the press is not so much for the benefit of the press as for the benefit of the general community because the

7 8

Sakal Papers v. Union of India, AIR 1962 SC 305 Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515 at 527. 9 (1994) 2 SCC 434.

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community has a right to be supplied with information and the government owes a duty to educate the people within the limits of its resources. Article 19(1)(a) applies to citizen only and so a non-citizen running a newspaper cannot seek the guarantee of this constitutional provision. Imposition of pre-censorship on a newspaper,10 or prohibiting it from publishing its own views or those of its correspondents on a burning topic of the day,11 constitute an encroachment on the freedom of speech and expression. The freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of publication, as a publication is of little value without circulation. Therefore, imposition of a ban upon entry and circulation of a journal within a State is restriction of Art. 19(1)(a).12 Olivier v. Buttigieg,13 is a Privy Council case from Malta. The constitutional provisions in India and Malta regarding freedom of speech are practically synonymous. The church authorities condemned Voice of Malta, a paper run by the opposition party. The Health Minister thereupon issued a circular prohibiting the entry of the newspaper in the various hospitals and branches of the Health Department. The entry of any other newspaper was not prohibited. The Privy Council decided that Ministers order amounted to a hindrance in the way of the editor of the paper in the enjoyment of his freedom to impart ideas and information which is an essential part of the freedom of speech and expression. The Privy Council refused to accept the argument that the hindrance was slight and that it could be ignored as being de minimis.

10 11

Brij Bhushan v. Delhi, AIR 1950 SC 129. Virendra v. State of Punjab AIR 1957 SC 896 12 Romesh Thapar v. State of Madras, AIR 1950 SC 124 13 (1966) 2 All. E.R. 459.

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In R. Rajagopal v. State of T.N.14 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. In D.C. Saxena (Dr.) v. Chief Justice of India15 the Honorable Supreme Court has held that no one else has the power to accuse a judge of his misbehavior, 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 favor as the courts are created constitutionally for the dispensation of justice. Freedom of the media, which is an integral part of freedom of expression, is essential in a democratic society. It is the responsibility of judges to recognize and give effect to freedom of the media by applying a basic presumption in their favor16. "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers17" In Indian Express v. Union of India18, it has been held that the press plays a very significant role in the democratic machinery. Freedom of press has three essential elements.

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(1994) 6 SCC 632 1996 SCC (7) 216 16 In 1994, a group of 39 distinguished legal experts and media representatives, convened by the International Commission of Jurists, its Centre for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, met for three days in Madrid, Spain.
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Universal Declaration of Human Rights, 1948 (1985) 1 SCC 641

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They are: 1-Freedom of access to all sources of information19 2. Freedom of publication, and 3. Freedom of circulation. AP Sen J, (as he then was) described the right to freedom of press as a pillar of individual liberty, which has been unfailingly guarded by the Courts. But why the "mother" is acting like a stepmother to judiciary is baffling. In a landmark judgment of the case Maneka Gandhi v. Union of India20, the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.

In Romesh Thapar v. State of Madras21, Patanjali Shastri, CJ observed: Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible. In Cox and Griffiths, Petitioners22 this court considered a petition to the nobile officium against a finding of contempt made against the petitioners in respect of an article published in the Daily Record newspaper. The report in question, which appeared a week before eleven prisoners faced trial in the High Court of Justiciary, stated that they had been moved from one jail to another under a massive armed police guard, that they were heavily guarded and security was tight, that they were "heavy duty guys" and that they were facing "a lot of heavy charges". The trial judge made a finding of contempt against the duty editor and the reporter. Among
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M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395. AIR 1978 SC 597 AIR 1950 SC 124. 1998 JC 267

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the reasons for granting the petition, the court held that although the article might have created a risk of some prejudice to the course of justice, there was no risk of the course of justice being "seriously impeded or prejudiced" and, accordingly, that no contempt of court had occurred. Mr. F. S. Nariman, the noted jurist, had once observed, A responsible Press is the handmaiden of effective judicial administration. The Press does not simply publish information about cases and trials but, subjects the entire Justice hierarchy (police, prosecutors, lawyers, Judges, Courts), as well as the judicial processes, to public scrutiny. Free and robust reporting, criticism and debate contribute to public understanding of the rule of law, and to a better comprehension of the entire Justice system. It also helps improve the quality of that system by subjecting it to the cleansing effect of exposure and public accountability. One of the objects of a newspaper is to understand the popular feeling and give expression to it, another is to arouse among the people certain desirable sentiments, and the third is the fearlessness to expose popular defects. Reporting of a case by media to the public, and asking their opinion does not amount to contempt of court. In Sushil Sharma v. State (Delhi Administration) & Ors.23, the Court has repelled the charge of contempt with respect to media reports based on the charge-sheet praising prosecution witnesses and referring to the public desire to hang the offender as also publishing results of the DNA test results which were part of the police investigation. This Court held that in all these news items press has stated as a matter of fact what has been placed on court record by the prosecution and what is happening in the society after the murder of Naina Sahni. By publishing the news items including reporting of demonstrations, views of some of the people and
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1996 Crl. LJ 3944

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the evidence filed on record including DNA expert report the press has stated what has come on record. There is no criticism of any of the evidence in any manner. It is more a case of propriety than contempt. In fact people at large have a right to know in order to be able to take part in such like proceedings. The right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age. In Narain Das v. Government of Madhya Pradesh and Ors. 24, the Court ruled that an unfavorable projection of one of the parties in a pending litigation merely affected the reputation of that party and did not amount to contempt . Lord Viscount Dilhorne in Attorney-General v. B.B.C25 : It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself ne influenced in any way by the media, nor in my view will any layman experienced in the discharge of the judicial duties. Nevertheless, it should, I think, be recognized that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. Lord Salmon in Attorney-General v. BBC: I am and always have been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge.
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AIR 1974 SC 1252 (1981) AC 303

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In Pennekamp v. Florida26 in which the United States Supreme Court observed: 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 ex ercise. In Reliance Petrochemicals Ltd v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd and Ors27, the broadening and deepening dimensions of the Right to Freedom of expression were recognized28. In Re Lonrho Plc and others29, and Schering Chemicals Ltd v. Falkman Ltd.30, the possibility of a professional judge being influenced was held to be far more remote. Also, In the United States, because of the broad protections granted by the First Amendment, with extremely limited exceptions, unless the media outlet is a party to the case, a media outlet cannot be found in contempt of court for reporting about a case because a court cannot order the media in general not to report on a

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(328 US 331 : 90 L Ed 1295 (1946)) AIR 1989 SC 190 as was the case in S. Rangarajan Vs. P. Jagjivan Ram28, Institutions cannot be hypersensitive about comment even (1989) 2 All ER 1100 (1981) 2 All ER 321

pertaining to pending proceedings.

29 30

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case or forbid it from reporting facts discovered publicly31. Newspapers cannot be closed because of their content32.

Sakal Papers case An Act33 and a government order34 there under sought to regulate the number of pages according to the price charged, prescribed the number of supplements to be published, and regulate the size and area of advertisements in relation to other matters contained in a newspaper. Thus, the number of pages published by a newspaper depended upon the price charged to the readers. The Supreme Court ruled it invalid for its purpose was to reduce circulation of some newspapers by making their price unattractively high for their readers. Reduction in the area for advertisements would reduce revenues forcing the newspapers to raise their prices which was also bound to affect circulation. This directly affected the freedom of speech and expression because inherent in this freedom is the right to publish and circulate publication. Art 19(1)(a) guarantees not only what a person circulates but also the volume of circulation. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. Being a restriction
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(Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) .( Near v. Minnesota, 283 U.S. 697 (1931))

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The Newspaper (Price and Page) Act, 1956. The Daily Newspaper (Price and Page) Order, 1960

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on Art 19(1)(a), it was not related to any of the purposed mentioned in Art. 19(2), and so it was invalid. In the instant case, the Central Government sought to support the Act and the order by pleading that they regulated the commercial aspects of the newspapers, and not dissemination of news and views by them, and amounted to reasonable restrictions under Art. 19(6).35 The Court that newspapers have two aspects- dissemination of news and views and commercial. The two aspects are different, the former falls under Art. 19(1)(a) read with Art. 19(2), and the latter falls under Art. 19(1)(g) and can be regulated under Art. 19(6). However, the state cannot seek to place restrictions on business by directly and immediately curtailing any other freedom of the citizen guaranteed by the Constitution and which is not susceptible of abridgement on the same grounds as are set out in Art. 19(6). Therefore, the right of freedom of speech cannot be taken away with object of placing restrictions on the business activities of a citizen. The grounds on which the two freedoms- of speech and of trade and commercecan be curtailed are different. The freedom of speech cannot be curtailed in the interests of the general public, but the freedom to carry on business can be. If a law directly affecting freedom of speech is challenged, it is no answer that th e restrictions enacted by it are justifiable under clauses (3) to (6). Article 19 enumerates different freedoms separately and then specifies the extent of restrictions to which each of them can be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and Art 19(1) does not prefer one freedom to another. The state cannot make a law which directly restricts one freedom even for securing the better
35

Sakal Papers v. Union of India, AIR 1962 SC 305

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enjoyment of another freedom. All the greater reason, therefore, for holding that the state cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom. Therefore, referring the press as a business and justifying the impugned restriction under Art. 19(6) as a proper restriction on the right to carry on the business of publishing a newspaper would be wholly irrelevant for considering whether the impugned Act infringes or does not infringe the freedom guaranteed by Art. 19(1)(a). This means that freedom of speech cannot be restricted for the purpose of regulating the commercial aspect of the activities of the newspapers. The Court emphasized, The freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and Governments must be preserved.36 Bennett Colemans case Bennett Coleman & Co. v. Union of India37, is a case of great significance in the area of freedom of speech and expression. India faces a shortage of indigenous newsprint. Therefore newsprint has to be imported from foreign countries. Because of the shortage of foreign exchange, quantity of newsprint imported was not adequate to meet all requirements. Some restrictions, therefore, became necessary on the consumption of newsprint. Accordingly, a system of newsprint quota for newspapers was evolved. The actual consumption of newsprint by a newspaper during the year 1970-71 or 1971-72, whichever was less, was taken as the base. For dailies with a circulation up to 100,000 copies, 1o per cent increase in the basic entitlement was to be granted, but for newspapers with a larger circulation, the increase was to be only 3 per cent. Newspapers with less than 10 pages daily could
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AIR 1962 SC at 314-25 AIR 1973 SC 106

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raise the number of pages by 20 per cent subject to the ceiling of 10. A few more restrictions were imposed on the user of newsprint. The dominant direction of the policy was to curtail the growth of big newspapers which could not increase the number of pages, page-area or periodicity by reducing circulation to meet their requirements even within their admissible quota of newsprint. This newsprint policy was challenged in the Supreme Court. By a majority, the Supreme Court declared the policy unconstitutional. While the Government could evolve a policy of allotting newsprint on a fair and equitable basis, keeping in view the interests of small, medium and big newspapers, the Government could not, in the garb of regulating distribution of newsprint, control the growth and circulation of newspapers. In effect, here the newsprint policy became the newspaper control policy. While newsprint quota could be fixed on a reasonable basis, post-quota restrictions could not be imposed. The newspapers should be left free to determine their pages, circulations and new editions within their fixed quota. The policy of limiting all papers whether small or large, in English or an Indian language, to 10 pages was held to be discriminatory as it treated unequal as equals. The restrictions imposed cut at the very root of the guaranteed freedom. The Court stated: The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression in infringed.

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The Court maintained that the freedom of the press embodies the right of the people to speak and express. The freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views. The press has the right of free publication and their circulation without any obvious restraint on publication. In the words of the Court: Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. Indian Express case Several newspapers filed writ petitions challenging the constitutional validity of the notifications issued by the Centre imposing from March 1, 1981, specified rates of custom duty and auxiliary duty on newsprint imported by different categories of newspapers. The levy was challenged in the Supreme Court. The main plea of the petitioners was that the impugned levy of duty on imported newsprint was excessive and had the direct effect of crippling the freedom of speech and expression and the carrying on of the business of publishing newspapers as it had led to an increase in the price of newspapers resulting in reduction of their circulation. The Supreme Court accepted the plea of the newspapers with the following observation.38 What may, however, have to be observed in levying a tax on newspaper industry is that it should not be an overburden on newspapers which constitute the Fourth Estate of the country. Nor should it single out newspaper industry for harsh treatment. A wise administrator should realize that the imposition of a tax like the custom duty on newsprint is an imposition on knowledge and would virtually amount to a burden on a man for being literate.
38

Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India AIR 1986 SC 515 at 539

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The fundamental principle involved was the peoples right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of the people in the administration. The Court noted that with a view to checking malpractices interfering with the free flow of information, democratic constitutions the world over make provisions guaranteeing freedom of speech and expression and laying down the limits of interference therewith. It is, therefore, the primary duty of all national Courts to uphold this freedom and invalidate all laws or administrative actions which interfere with this freedom, contrary to the constitutional mandate. The Court pointed out that the imposition of customs duty on newsprint amounts to an imposition of tax on knowledge and virtually amounts to a burden imposed on a man for being literate and being conscious of his duty as a citizen to inform himself of the world around him. It is on account of the special interest which society has in the freedom of speech and expression that the approach of the government must be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters. But instead of quashing the impugned notification itself, the Court directed the Government to consider within six months the entire question of levy of import duty or auxiliary duty on newsprint with effect from March 1, 1981. If on such reconsideration, the government decided to modify the levy of the duty, it should take necessary steps to that end. Quashing the impugned notifications would have led to the petitioners paying much higher duty and the result would have been disastrous to them. The Court emphasized that it did not wish the Government to be deprived of the legitimate duty which the petitioners would have to pay on the imported newsprint.

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The Court thus rejected the plea of the petitioners that no duty could be levied on the newspaper industry. Having regard to the facilities like telephones, teleprinters, postal, transport and other communication amenities provided by the state at considerable cost to itself, the newspapers have to bear the common fiscal burden like the others. However, such a levy was subject to review by Courts in the light of the provisions of the Constitution. The Court has t o reconcile the social interest involved in the freedom of speech and expression with the public interest involved in the fiscal levies imposed by the Government specially because newsprint constitutes the body, if expression happens to be the soul. Underlining the importance of the freedom of the press in democratic society, the Court has stated that in todays free world, freedom of press is the heat of social and political intercourse. 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. With a view to checking malpractices interfering with the free flow of information, democratic constitutions all over the world make provisions guaranteeing the freedom of speech and expression and laying down the limits of interference with it. It is, therefore, the primary duty of all the national Courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.

Hindustan Times case Executive orders issued by State Government under Art. 162 directing deduction of an amount of 5% from the bills payable to newspapers having circulation of more than 25,000 copies for publication of government advertisements for
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implementation of its Pension and Social Security Scheme for Full time Journalists has been held to be ultra vires. The Court observed that advertisements in newspapers play an important role in the matter of revenue of the newspapers and have a direct nexus with its circulation by making the newspapers available to the readers at a price at which they can afford and they have no other option but to collects more funds by publishing commercial and other advertisements and as such the State cannot, in view of the equality doctrine contained Article 14 of the Constitution, resort to the theory of take it or leave it. Every executive action which operates to the prejudice of any person must have the sanction of law and the executive cannot interfere with the rights and liabilities of any person unless the legality thereof is supportable in any Court of law. 39 Other Aspects of the Freedom of Press The newspapers reporters can interview the prisoners condemned to death if they are willing to be interviewed. Unless, in a given case, there are weighty reasons for denying the opportunity to interview a condemned prisoner, the right of the press to interview the prisoner should not be denied. The reasons for denying the interview should be recorded in writing.40 In the instant case, the President had declined to commute the death sentence to life imprisonment; the convicted prisoners were willing to be interviewed. Accordingly, the Court ruled that the denial of right to the petitioner press reporter to interview these condemned prisoners, in the absence of any weighty considerations, was not justified. Again in M. Hasan v. State of Andhra Pradesh,41 the Andhra Pradesh High Court has held that denial of permission to a press reporter to interview a willing
39 40

Hindustan Times v. State of U.P., AIR 2003 SC 250 Smt. Prabha Dutt v. Union of India, AIR 1982 SC 6 41 AIR 1998 AP 35

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condemned prisoner on a ground not falling within Art. 19(2) is not valid. Any such denial is deprivation of a citizens Fundamental Right of freedom of speech and expression. Convicts are not wholly denuded of their Fundamental Rights. During the course of a trial of a suit for damages, the judge ordered that the evidence of a witness should not be published in the newspapers. The Supreme Court rejected the plea that the order infringed the Fundamental Right of a press reporter under Art. 19(1)(a). The Court observed that, as a judicial decision purports to decide the controversy between the parties before the Court and nothing more, a judicial verdict pronounced by a Court in relation to a matter brought before it for its decision would not affect the right of citizens under Article 19(1).42 An Act43 enacted to regulate conditions of service of employees of newspaper establishments, e.g., gratuity, hours of work, leave, wages, etc. does not violate Art. 19(1)(a). An argument against its validity was that it would adversely affect the financial position of the marginally situated newspapers which might be forced to close down and thus the tendency of the Act was to curtail circulation, which violated Art. 19(1)(a). The Court held, on the other hand, that the press had no immunity from general laws like tax or industrial laws. The purpose of the Act was to ameliorate the conditions of the workmen of the newspaper industry. The burden on marginally viable newspapers was an extraneous consequence or incidental disadvantage and not what the legislature aimed at in enacting the measure. The burden on the industry was remote which might or might not come about, and

42 43

Naresh Mirajkar v. State of Maharashtra, AIR 1967 SC 1 The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955

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unless the burden was the direct and inevitable consequence of the Act itself, it could not be held invalid under Art. 19(1)(a).44 The press is not immune from taxation or general labour laws or civil or criminal laws. The prohibition is upon the imposition of any restriction directly relatable to the right to publish, to the right to disseminate information and to the circulation of newspapers.45 It is not inconsistent with Article 19(1)(a) for the Central Government to appoint a committee to enquire into the economics of the newspaper industry.46 A legal provision requiring printing of the name of the printer, place of printing, name of the publisher and the place of publication on every paper or book does not infringe Art. 19(1)(a) for the intention of the provision is to inform the public as to who the printer of publisher is .47 Under S.99A, Cr. P.C., a State Government can forfeit any book or newspaper if it appears it to contain any seditious matter, or matter intended to promote feelings of enmity or hatred between different classes of citizens, or matter intended to outrage the religious feelings of a class of citizens. The aggrieved party can move the High Court against the order of forfeiture. The provision has been held valid under Art. 19(2) as having been made in the interest of public order, decency or morality.48 Reliance Petrochemicals undertook a mega issue of debentures worth more than Rs. 500 crores. Suits and writ petitions were filed in various Courts seeking injunctions against the said public issue. On an application by Reliance, the
44

Express Newspapers v. Union of India, AIR 1958 SC 578. Also, Indian Express Newspapers (P.) Ltd. V. Union of India, AIR 1995 SC 965. 45 Printers (Mysore) Ltd. V. Asst. Commercial Tax Officer, (1994) 2 SCC 434. 46 The Statesman v. Fact Finding Committee, AIR 1975 Cal. 14. 47 In re. G. Alavander, AIR 1957 Mad. 427. 48 Veerabrahman v. State, AIR 1969 AP 572

26

Supreme Court transferred all these cases to itself fro decision, and also made an ex parte direction that the issue of debentures should go on without let or hindrance. The Indian Express published an article questioning the validity of the consent given by the Controller of Capital Issues to the issue in question. Reliance secured from the Supreme Court an order of injunction prohibiting the newspaper from publishing anything questioning the legality or validity of the issue of debentures- a matter which at the time was subjudice. The debentures were over-subscribed though not allotted yet when the concerned newspaper sought vacation of the Courts order against it. Reliance opposed vacation of the injunction at that stage on the ground that before allotment was made, the subscribers could withdraw their applications which might adversely affect the issue and so they pleaded that the danger still persists. The newspaper argued that pre-stoppage of newspaper publication on matters of public importance was contrary to the freedom of the press enshrined in the Constitution. The Supreme Court adopted the test laid down in Anita Whitney v. California49that there must be reasonable ground to believe that the danger apprehended was real and imminent. Brandeis , J., has said in Whitney that the fact that speech was likely to result in some violence or in destruction of property was not enough to justify its suppression. There must be probability of serious injury to the state. In Reliance Petrochemicals Ltd. V. Indian Express50, the Court has underscored the right of the people to know. The Court has pointed out that in the instant case it had to balance two interests of great public importance freedom of speech and administration of justice. A balance, in our opinion, has to be struck between the requirements of free press and free trial The Court has observed in this regard:
49 50

(1926) 71 Law Ed. 1095. AIR 1989 SC 190

27

We must see whether there is a present and imminent danger for the continuance of the injunction would amount to interference with the freedom of press in the form of preventive injunction and it must, therefore, be based on reasonable grounds for the sole purpose of keeping the administration of justice unimpaired We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age on our land under Art. 21 of the Constitution. That right has reached new dimensions and urgency. Thats right puts greater responsibility upon those who take upon the responsibility to inform.

The Court thus ordered that there was no longer any need to continue the injunction. Preventive remedy in the form of an injunction is no longer necessary. Of course, the Court has pointed out that if any article written in the newspaper comes in the way of administration of justice by the Court in the instant case, there would always be available the concept of contempt of Court to take care of such an eventuality. In Dainik Sambad v. Tripura,51 Gauhati High Court has considered another matter of significance to the freedom of press. Does discriminatory allotment by Government of its advertisements among the various newspapers in the same category impair the freedom of press and the right to equality? The State had argued that in the instant case that it was not bound to give advertisements to the petitioner newspaper equally with other newspaper as it had raised communal

51

AIR 1989 Gau 30.

28

frenzy through its editorials refused to publish Government contradictions and had always been critical of the Government. Rejecting the argument, the High Court pointed out that the fundamental principle involved here was the peoples right to know. The Court laid emphasis upon the importance of freedom of press in strengthening and individuals participation in the decision-making process by the Government as the Supreme Court has emphasized in Indian Express.52 In sum, the fundamental principle involved here is the peoples right to know. Freedom of press should receive a gener ous support from all those who believe in the participation of the people in the administration. Thus, the society has an interest in the freedom of press. In the instant case, the High Court directed the State to distribute its advertisements equally among all newspapers including the petitioner. The Court said: Such power should not be used on the newspaper establishment so as to make the establishment subservient to the Government. To the same effect is Sushil Choudhary v. Tripura,53 where the High Court has stated that discriminatory allocation of government advertisements among the newspapers adversely affects the freedom of speech and expression as it may result in reduction of circulation of these newspapers which get less advertisement. A large number of newspaper readers are interested in government advertisements. Such readers may prefer to subscribe to those newspapers which have got government advertisements. If a newspapers gains in circulation, it comes to have a great influence on the public mind, and this strikes at the very foundation of the freedom of speech and expression.

52 53

Indian Express v. Union of India, AIR 1986 SC 515 AIR 1998 Gau 28.

29

In Rajgopal54, the question was how far the press could criticize and comment on the acts and conduct of the public officials. The Supreme Court felt that freedom of the press extends to engaging in uninhibited 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 defamation has to be done in terms of the democratic way of life laid down in the constitution. The Supreme Court has ruled that neither the state nor its officers have any authority in law to impose any prior restraint on publication of any material in the press on the ground that it is defamatory of the state or its officers. Their remedy arises only after publications by ways of suit for damages for defamation. Restrictions The freedom of speech and of the press does not confer an absolute right to express without any responsibility. Clause (2) of Article 19 of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under following heads: I. security of the State, II. friendly relations with foreign States, III. public order, IV. decency and morality, V. contempt of court, VI. defamation,

54

R. Rajgopal v. State of Tamil Nadu, AIR 1995 SC 264.

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VII. incitement to an offence, and VIII. sovereignty and integrity of India. Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.55 Security of the State: Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. All the utterances intended to endanger the security of the State by crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State.56 It does not refer to the ordinary breaches of public order which do not involve any danger to the State.57 Friendly relations with foreign States: This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardise the friendly relations of India with other State. Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court's decision in Romesh Thapars case58. The expression 'public order' connotes the sense of public peace, safety and tranquillity. In Kishori Mohan v. State of West Bengal59, the Supreme Court explained the differences between three concepts: law and order, public order, security of State.
55 56

Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615. State of Bihar v. Shailabala Devi, AIR 1952 SC 329. 57 Romesh Thapar v. State of Madras, AIR 1950 SC 124. 58 AIR 1950 SC 124 59 AIR 1972 SC 1749

31

Anything that disturbs public peace or public tranquillity disturbs public order.60 But mere criticism of the government does not necessarily disturb public order.61 A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.62 It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya63 , the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquillity.64 Decency and morality: The word 'obscenity' is identical with the word 'indecency' of the Indian Constitution. In an English case of R. v. Hicklin65, the test was laid down according to which it is seen 'whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences'. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra66. In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book Lady Chatterley's Lover. The standard of morality varies from time to time and from place to place.
60 61

Om Prakash v. Emperor, AIR 1948 Nag, 199. Raj Bahadur Gond v. State of Hyderabad, AIR 1953 Hyd 277. 62 Ramjilal Modi v. State of Uttar Pradesh, AIR 1957 SC 622; 1957 SCR 860. 63 AIR 1960 SC 633 64 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884
65 66

LR 3 QB 360.

AIR 1965 SC 881

32

Contempt of court: The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice. In In re Arundhati Roy67, the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida68 in which the United States Supreme Court observed: 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 E.M.S. Namboodripad v. T.N. Nambiar69 , the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah70, contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof. Defamation: The clause (2) of Article 19 prevents any person from making any statement that injures the reputation of another. With the same view, defamation has been criminalised in India by inserting it into Section 499 of the I.P.C.
67 68

(2002) 3 SCC 343 (328 US 331 : 90 L Ed 1295 (1946) 69 AIR 1970 SC 2015 70 AIR 1984 SC 615.

33

Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offence. Sovereignty and integrity of India: This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India. The 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. Trial by televisions should not to be tolerated in a civilized society 71 and the same holds for any other publication through any medium- newspapers or Internet. Comment on Pending Cases It has been observed that the journalist who rushes to comment on causes which are pending without taking care to refrain from publishing matter, undertakes a perilous adventure and does so at a grave risk to himself.72 When a newspaper published an article about an accused in a pending case assuming that the accused

71 72

R v. Savinaranayagan and Walker, (1968) 3 All ER 439 Rao Harnarain Singh v. Gumani Ram AIR 1958 (P&H) 273

34

was guilty of the offences amounts to contempt as it was calculated to interfere substantially with fair trial and to interfere with due course of justice.73 It is evident from many media highlighted case that once media has discussed merits of case, the judges are always under a subtle pressure to deliver the judgment which is in consonance with media reports whenever the court has delivered judgment contrary to media reports. It has always become the subject to public suspicion. These kinds of incidents not only malign the image of courts but also lead to loss of confidence which general public has in the courts. It has been held that newspapers collecting opinions on questions which are sub-judice from different persons including lawyers and publishing before argument and indulging in yellow journalism and gossip are liable for contempt.74 Lord Harwicke, L.C.: Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. Lamer C.J.C. in Dagenais v. Canadian Broadcasting Corp.75, explained: A ban on publication is necessary on order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk. Lord Watkins L.J.: In our land we do not allow trial by television or newspaper. Until the well-recognised institution of this country for the doing of

73 74 75

Rev. father Sebastian Onamkulam v. K. Karunakaran AIR 1967 Ker 177 (DB) In Dr. J. Jayalalitha v. Dr. M. Channa Reddy. 1995 AIHC 5875 (Mad.)(DB) [1994] 3 S.C.R. 835

35

justice, namely the courts, have worked their course, then the hand of the writer and the voice, of the broadcaster must be still.[76] [77] Lord Reid: Anything in the nature of pre-judgment of a case or specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effects which may be far reaching.If people are led to think that it is easy to find the truth, disrespect for the process of law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare badly. I do not think that the freedom of the press would suffer, and I think the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to pre-judge issues in pending causes78 In 2006, the High Court held in Attorney-General v. Chee Soon Juan79 that the offence of scandalizing the court falls within the category of exceptions from the right to free speech expressly stipulated in Article 14(2)(a), and that the Article clearly confers on Parliament the power to restrict a person's right of free speech in order to punish acts of contempt. The offence of scandalizing the court can be committed in various ways, which included80: a publication in a print medium; a television or radio broadcast etc. Allegations may scandalize the court by implication and association when contextually perceived by an average person.81 For printed publications, the failure to publish a fair or adequate summary of the reasons of the court and/or the
76 77 78 79 80 81

Peacock v. London Weekend Television, (1985) 150 JP71 Ref.: Arlidge, Eady & Smith on Contempt 2 Edn. P. 64 (1974) AC 273 [2006] SGHC 54 Tan Liang Joo John, p. 1142, para. 27. Tan Liang Joo John, p. 1142, para. 28.
nd

36

omission of crucial facts may scandalize the court.82 The intention of the contemnor is irrelevant in establishing liability for contempt.[83][84] In M.P. Lohia v. State of West Bengal85: the Apex Court observed that the practice of publishing article on the pending matter certainly interferes with the administration of justice.86 In Atkins v London Weekend Television Ltd87: on the day prior to her trial a television programme was broadcast throughout the United Kingdom by the respondents. The court held that the references to the petitioner in the context of the programme as a whole were in the highest degree likely to prejudice her prospects of a fair and impartial trial, and that the broadcasting of the programme constituted interference with the administration of justice and amounted to contempt of court. Under the current law, every distribution of written or printed material and every broadcast is treated as a separate act of publication, occurring at the time of the relevant distribution or broadcast.

82 83 84

R. v. Fletcher [1935] 52 C.L.R. 248 at 257258, cited in Hertzberg, p. 1133, para. 54. Wain, p. 98, para. 44 Chee Soon Juan, p. 661, para. 31; Lee Hsien Loong v. Singapore Democratic Party [2009] 1 S.L.R.(R.) 642 at 730,

para. 221.
85 86

2005Cri.LJ1416 The said article was published when case under Sec 304-B, 406 and 498-A, IPC was pending before court. The

death of deceased took place on 23-10-2003 and the complaint in this regard was registered and the investigation was in progress. The application for grant of anticipatory leave was disposed of by the High Court of Calcutta and the special leave petition was pending before Supreme Court.
87

1978 JC 48

37

In Vishwa Dev Sharma v. State of Rajasthan88, where an article was published making contemptuous allegations against Judges, it was held that publication of such article and author of such article liable for contempt. In State v. D.R. Dass89, where it was published in newspaper certain rumours and allegations against Judicial officers, Editor was liable for Contempt of Court90. R.C. Cooper v. Union of India91 (Hidayatullah, C.J.): The freedom of press under our Constitution is not higher than that of citizen and that there is no greater privilege attaching to the profession of the press as distinguished from the members ofthe public. It should be well to remember that the Judges by reason of their office are precluded from entering into any controversy in the columns of the public press, nor can they enter the arena and do battle upon equal terms in newspapers, as can be done by ordinary citizens. In J. R. Parashar v. Prasant Bhushan92, it was held that to ascribe motives to a Judge is to sow the seed of distrust in the minds of the public about the administration of justice as a whole and nothing is more pernicious in its consequences than to prejudice the mind of the public against judges of the Court who are responsible for implementing the law.

88 89 90

1993 (4) J.T. 358

1973 Cr. LJ 1273 (All.) G.N. Vermav. Hargobind Dayal, AIR [1975] All. 52; 1977 Cr. LJ 1003; 1974 Cr. LJ 899 (Del.); 1974 Cr. LJ 428; 1973

Cr. LJ 1340 (Raj.).

91 92

1970 AIR 564, 1970 SCR (3) 530 (2001) 6 SCC 735

38

Conclusion and 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: - Freedom of press may be inserted as a specific fundamental right under Article 19 of the Constitution of India. - Parameters of freedom of press should be clearly earmarked. - Information must be available at an affordable cost within specified, definite and reasonable time-limits. - Free press should not violate right to privacy of an individual. - Free press must be law enforcing and preventive of crime. - Rule of law must be followed by the free press. - Influence through free press upon the judiciary should not be exercised.

39