Freedom of Press in India

SUB: Business Law 2.
6
Freedom Of Press In India 2010
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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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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: ‘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
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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.
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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.”
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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
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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 non-

information, all equally create an uninformed citizenry which makes democracy a
farce. … Freedom of speech and expression includes right to impart and receive
information which includes freedom to hold opinions.”
In 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
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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.
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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 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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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
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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
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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
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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.”
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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
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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.”
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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 ~
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 ~
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
~ 25 ~
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 ~
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 ~
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.
~ 28 ~
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 ~
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 ~
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.
~ 31 ~
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.
~ 32 ~
END NOTES
1. Constitutional Assembly Debates, Vol. VII, p. 780 (2.12.1948)

2. Durga Das Basu, Law of Press in India (1980) p. 23.
3. 1950 INDLAW SC 9
4. 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 ~
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
~ 34 ~
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
~ 35 ~

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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

5. AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS AND OTHER LEGISLATIONS

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

11. END NOTES ................................................................................................................ 33

12. WORKS CITED ......................................................................................................... 35

FREEDOM OF PRESS IN INDIA: ‘AN OVERVIEW’

Not long ago, an article published by Alex Perry, a foreign journalist,

The constitution guaranteed the fundamental right to freedom of

Justice Patanjali Shastri in one of the earliest cases on the press

The press is a responsible part of a democratic society. It should

Justice Jeevan Reddy and Justice B.N. Hansaria in the Printers

Freedom of Press carries different meanings for different people. But

CONSTITUTIONAL HISTORY OF INDIAN PRESS FREEDOM

The above statement of the Supreme Court illustrates that the

Freedom of press in India: Constitutional Perspectives

The Freedom of press includes more than merely serving as a

“The freedom of the journalist is an ordinary part of the freedom of

With object and views, the Preamble of the Indian Constitution

The present study is intended to present the provisions of the Indian

The main object of providing guaranteed freedom of press is for

“Everyone has the right to freedom of opinion and expression, this

The same view of freedom of holding opinions without interference

“[O]ne-sided information, disinformation, misinformation and non-

In India, freedom of press is implied from the freedom of speech and

Article 19(1) (a) corresponds to the First Amendment of the United

1. freedom of access to all sources of information either of one’s own views or

Similarly, the persons in power should be able to keep the people

Keeping this view in mind Venkataramiah, J. of the Supreme Court of

The above statement of the Supreme Court illustrates that the

In Printers (Mysore) Ltd. v. CTO the Supreme Court has reiterated

The fundamental principle which was involved in freedom of press is

In R. Rajagopal v. State of T.N. the Supreme Court of India has held

Therefore, in view of the observations made by the Hon’ble Supreme

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

Freedom of Press in the U.S.

Freedom of press also

Freedom of Press in U.K.

In U.K., since Parliament is sovereign, the subjects cannot possess

A subject may say or do what he pleases, provided he does not

Freedom of Press in Sweden

Swedish Constitution is one of the few other Constitutions which

AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS

Freedom of press has

The newspaper not only

And hence it is also very necessary to limit this influential institution’s

Freedom granted under Article 19(1) (a) is restricted by the

Article 19(2) has been amended twice since the commencement of

“The expression ‘freedom of press’ has not been used in Article 19

The 44th Amendment [1978] of the Constitution also provides for

“Everyone has the right to freedom of opinion and expression; this

PRESS FREEDOM -CURRENT SCENARIO

But as far as the situation in India is concerned there exists

PRESS NEEDS TO IMPROVE

A part of the answer to the difficulties lies in making it possible

Even though investigative journalism is fast developing in

The most serious inadequacy relating to the Indian Press is to