FREEDOM OF THE MEDIA -CONSTITUTION AND THE COURTby The Hon Soli J Sorabjee Attorney General, India
Freedom of the Press was one of the constitutional guarantees persistently demanded by India's freedom fighters during British colonial rule. The British masters disdainfully turned down the demand on the ground that abstract declarations of rights are useless, unless there exist the will and the means to make them effective.Not surprisingly after Independence and during the framing of India's Constitution in the Constituent Assembly, the Founding Fathers attached great importance to Freedom of the Press. They believed that central to the concept of a free press is the freedom of political opinion and at the core of that freedom lies the right to criticise and censure the government. Surprisingly freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights in the Indian Constitution. The omission was noticed and criticised in the Constituent Assembly. Dr. B. R. Ambedkar, the principal architect of the Constitution, assured the members that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.
This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Press is implicit in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution[1]. Thus freedom of the press by judicial interpretation has been accorded constitutional status[2].Ê This is an instance of Constitutional implication.Ê However there is a strong body of opinion, which favours specific mention of freedom of the press as a fundamental right. No fundamental right guaranteed by the Constitution of India is absolute. Freedom of the press also can be restricted provided three distinct and independent prerequisites are satisfied.(1)
The restriction imposed must have the authority of law to support it. Freedom of the Press, like any other fundamental right, cannot be curtailed by executive orders or administrative instructions, which lack the sanction of law.(2) The law must fall squarely within one or more heads of permissible restrictions specified in Article 19(2), namely, (a) security of the State, (b) sovereignty and integrity of India, (c) friendly relations with foreign States, (d) public order, (e) decency or morality, (f) contempt of court, (g) defamation or (h) incitement to an offence[3]. In its landmark judgment in the case of Sakal Papers[4], the Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession. (3) The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable[5]
The validity of the restriction is justiciable. Courts in India exercising the power of judicial review can invalidate laws and measures which do not satisfy the above requirements, and have done so.The Indian judiciary has placed a generous construction on the ambit of freedom of the press and given it a capacious content. It has ruled that freedom of the press embraces a variety of rights. The right guaranteed is not merely the individual right of the proprietor of the newspaper, or the editor or the journalist. It includes the right to disseminate and import information over the right of citizens to receive information to read and to be informed.Ê In substance, it is the right of the people to know.Ê The right to information has been spelled out by the Supreme Court from the guarantee of free speech in Article 19(1)(a) in its judgment in S. P. Gupta.[6]
There is no law as yet on Freedom of Information.Ê A Bill is pending in Parliament.Ê Freedom of the press does not occupy a preferred position in the Indian Constitution which does not recognise a hierarchy of rights. Yet there are dicta of the Supreme Court describing this freedom as "the Ark of the Covenant of Democracy"[7], ãthe most precious of all the freedoms guaranteed by our Constitutionä[8].The test adopted by the Supreme Court for determining whether a particular piece of legislation infringes freedom of the press is the effect and operation of the legislation. It is not the object of the law or the form of executive action that determines the invasion of a fundamental right. The true test is whether the direct and inevitable effect of the impugned legislation or action is to abridge freedom of the press.[9]
Hence government's attempt to control the growth and circulation of newspapers under the garb of distribution of newsprint under a newsprint policy promulgated under the Import and Export Control Act was foiled. In its celebrated decision, Bennett Coleman & Co. v. Union of India[10]the Court ruled that a newsprint policy like the one before the Court was violative of the freedom of the press because it imposed restrictions which severely constricted newspapers in adjusting their page number and circulation and also curtailed the area of advertisement. The Court ruled that loss of advertisements seriously affects the circulation of a newspaper and a restraint on advertisements would clearly affect the freedom of the press.An interesting case arose in the State of Andhra Pradesh. The proprietor of a Telugu daily, Eenadu, complained that government had withdrawn advertisements from its paper on account of extraneous reasons, namely its criticism of the government, and this had adversely affected the circulation of the paper and its revenue. The action of the government was challenged. The High Court did not accept the contention that a newspaper has a constitutional right to obtain advertisements from the government. It, however, held that the government cannot exercise this power or privilege ãto favour one set of newspapers or to show its displeasure against another section of the press. It should not use the power over such large funds in its hands to muzzle the press, or as a weapon to punish newspapers which criticise its policies and actions. It has to use the funds in a reasonable manner consistently with the object of the advertisement viz. to educate and inform the public about the activities of the governmentä.[11]The press is not immune from the ordinary forms of taxation for support of the government nor from the application of the general laws relating to industrial relations.[12]
Yet, in another of its celebrated judgment in Indian Express Newspapers v. Union of India[13] in which a steep customs duty on newsprint was challenged, the Court observed that the imposition of a tax such as customs duty on newsprint is an imposition on knowledge and the Court has to reconcile the social interest involved in the freedom of the press with the public interest involved in the fiscal levies imposed by the Government. Therefore in the case of a tax on newsprint, it may be sufficient to show a distinct and noticeable burdensomeness clearly and directly attributable to the tax and it is not necessary to establish that the levy is confiscatory, which would be the requirement in other cases of taxation.According to the recent judgment of the Supreme Court commercial speech is within the guarantee of Article 19(1 )(a) and therefore commercial advertisements are entitled to constitutional protection.[14]
One of the vexed issues before the Court has been that of censorship by way of prior restraint.There is no provision in the Indian Constitution permitting or proscribing censorship. The sting of censorship lies in prior restraint which affects the heart and soul of freedom of the press. Expression is snuffed out before its birth. The communication in question may never see the light of day. Suppression by a stroke of the pen is more likely to be applied by the censoring authorities than suppression through a criminal process and thus there is far less scope for public appraisal and discussion of the matter. That is the real vice of prior restraint and its irresistible attraction to the censor.Is prior restraint intrinsically evil? Is it per se unconstitutional? There is unending debate on this question. In the Japanese Constitution (Article 21) and the German Constitution (Article 5) pre-censorship is prohibited. Again the American Convention on Human Rights (San Jose) 1969 (ACHR) expressly states in Article 13(2) that freedom of expression "shall not be subject to prior censorship". There was strong American influence in the drafting of the Japanese and German Constitutions after World War II. Yet even in the land of the First Amendment, for which there is more reverence than to the Ten Commandments, and despite the robust American tradition and the thrust of US judicial opinion against censorship, there is no absolute rule against prior restraint. Indeed, its necessity has been recognised, albeit in exceptional cases, by the United States Supreme Court in the seminal case of Near v. Minnesota, the sheet anchor of the opponents of prior restraint. The Court observed that ãthe protection even as to previous restraint is not absolutely unlimitedäand listed as exceptions obstructions to recruitment during war, publication of military movements, obscenity, ãincitements to acts of violence and the overthrow by force of orderly governmentä, and words that "may have all the effect of force".[15]
The Supreme Court of India in May 1950 had to resolve the question in Brij Bhushan v. The State of Delhi.[16] Section 7(1)(c) of the East Punjab Safety Act 1949 provided for submission of material for scrutiny if the government was satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to public safety or the maintenance of public order. The Court declared the statutory provision in question unconstitutional on the ground that the restrictions imposed were outside the purview of Article 19(2) as it then stood, which did not include public order as a permissible head of restriction. The Court did not rule that prior censorship is per se unconstitutional. Indeed, in 1957 the Court upheld censorship imposed under the Punjab Special Powers (Press) Act 1956 for a temporary period, which provided for a right of representation to the government.[17] It is noteworthy that another statutory provision imposing censorship without any time limit and without providing any right of representation was struck down by the Court in a judgment delivered on the same day.[18]ÊÊÊÊÊÊÊÊÊÊÊ
India's worst brush with censorship occurred during the spurious emergency declared by the government of Prime Minister Indira Gandhi on 25 June 1975. Censorship of the Press was imposed for the first time in independent India by the promulgation of a Central Censorship Order, dated 26 June 1975. No censorship was imposed during two previous declarations of emergency, in 1962 and in 1971, when the nation was fighting a war. Under the Indian Constitution during an emergency, fundamental rights, including freedom of speech and expression and the freedom of the press, stand suspended. Censorship, which in normal times would be struck down, becomes immune from constitutional challenge. Taking advantage of the emergency, numerous repressive measures were adopted in the form of executive non-statutory guidelines, and instructions were issued by the censor to the press. One of the instructions of the censor was that "nothing is to be published that is likely to convey the impression of a protest or disapproval of a government measureä.[19]
ÊÊÊÊÊÊÊÊÊÊÊ Consequently anything that smacked of criticism of governmental measures or action was almost invariably banned, even if the criticism was sober and moderate. The censor's scissors were applied arbitrarily and in a few cases its decisions bordered on the farcical. Quotations from Mahatma Gandhi, Tagore and Nehru were banned. A statement by the Chairman of the Monopolies and Restrictive Trade Practices Commission criticising the working of public sector undertakings was blacked out. Other ludicrous instances are the bans imposed on news about a member of a former royal family, Begum Vilayat Mahal, squatting at New Delhi railway station; a report about junior lawyers marching to the Delhi High Court; a London report of the arrest of a famous Indian actress for shoplifting; and the news about a meeting of the Wild Life Board, which considered the grant of a hunting licence to a certain Maharajahâs brother.[20]
These bans had nothing to do with the security of the State or preservation of public peace and order but reflected the capricious working of the censoring authorities.Some of the censorâs directives were sinister, like the ones prohibiting any reference to the transfer of State High Court judges, banning publication of judgments of High Courts which ruled against the censor, "killing" news of the opposition of certain State governments to proposed constitutional amendments, banning reports of alleged payoffs made during the purchase of Boeing aircraft and suppressing criticism of family planning programs. The object was not merely withholding of information but manipulation of news and views to legitimise the emergency and make it acceptable. One tragic consequence was that inhuman practices like forcible sterilisation of young men after removing them from buses and other excesses of over-enthusiastic family planning officials came to light much later after the events, by which time family planning had become an anathema to the rural masses. An urgent and important programme suffered a serious setback owing to suppression of freedom of the press by the censor.ÊÊÊÊÊÊÊÊÊÊÊ
The Indian judiciary, especially the State High Courts, displayed commendable courage in striking down the censor's orders and upheld the right of dissent even during the emergency. The High Court of Bombay in its landmark judgment in Binod Rao v. Masanidelivered on 10 February 1976 declared:
ãIt is not the function of the censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to tow along in a single file or to speak in chorus with one voice. It is not for him to exercise his statutory powers to force public opinion in a single mould or to turn the Press into an instrument for brainwashing the public. Under the Censorship Order the censor is appointed the nursemaid of democracy and not its gravedigger. · Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication ...ä.[21]
The Court, however, cautioned that the voice of dissent cannot take the form of incitement of revolutionary or subversive activities, for then instead of serving democracy it would subvert it.ÊÊÊÊÊÊÊÊÊÊÊ The High Court of Gujarat in its judgment in C. Vaidya v. DâPenha castigated the censorship directives for imposing upon the people "a mask of suffocation and strangulation". In construing the expression "prejudicial report", the Court observed: ãTo peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out of power at the next general elections is not a prejudicial report at all. Such a public education is the primary need of every democracy.ä[22]ÊÊÊÊÊÊÊÊÊÊÊ These judgments were delivered at a time when "inconvenient" judges during the emergency were transferred from one State to another in India. Notwithstanding this, the High Courts rose to the occasion. Indeed it was their finest hour.ÊÊÊÊÊÊÊÊÊÊÊ In R. Rajagopal v. State of TN[23] the Supreme Court held that neither the government nor the officials who apprehend that they may be defamed, had the right to impose a prior restraint upon the publication of the autobiography of Auto Shankar, a convict serving sentence of death in jail, which was likely to reveal a nexus between criminals and high ups in the police.Ê The Court held that ãThe remedy of public officials/public figures, if any, will arise only after the publication. ...ä
The Court has however accepted prior restraint in the case of exhibition of motion pictures because ã.... it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture ...ä It, however, emphasised the necessity for a corrective machinery in the shape of an independent tribunal and also a reasonable time limit for the decision of the censoring authorities. In laying down certain guidelines for the censor, the Court was at pains to point out that the "standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom."[24]
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Courts in India have ruled that in adjudging the question of proscription of articles in the press or banning the exhibition of a movie or programs in the TV channels, the standards to be employed must be of reasonable, strong-minded human beings and not those of weak and vacillating minds nor of those who scent danger or perceive hurt and insult in every critical point of view. It is not permissible to stifle all free expression of opinion by imagining lurking dangers in every corner and discovering sharp curves and hairpin bends when all that exists is a straight road. The correct test is: what impression the article or movie as a whole would produce upon a man of ordinary commonsense.[25]
Onslaughts on freedom of expression can emanate also from non-State actors, namely groups or individuals who demand the banning of a book or a movie which appears offensive or hurtful to them. A determined effort was made to ban the exhibition of a movie by a group of persons who regarded its theme and presentation as hostile to the policy of reservation of jobs in public employment and seats in educational institutions in favour of Scheduled Castes and backward classes, for whose benefit special provisions by way of protective or compensatory discrimination are enacted in the Constitution of India. The Madras High Court[26] in an incredible judgment revoked the certificate granted by the Board of Censors permitting exhibition of the film and restrained its exhibition.ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ
In a path breaking decision the Supreme Court promptly reversed the High Court judgment.[27]Ê It approved the observations of the European Court of Human Rights that "freedom of expression protects not merely ideas that are accepted but those that offend, shock or disturb the State or any sector of the population. Such are the demands of the pluralism, tolerance and broadmindedness without which there is no democratic society" [28]. The Court laid down a vital principle in these words: "If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threats of demonstrations and processions or threats of violence. That would be tantamount to negation of the rule of law and surrender to blackmail and intimidation. Freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people."[29]ÊÊÊÊÊÊÊÊÊÊÊ
This judgment has far-reaching implications. Its wholesome effect and timeliness cannot be over-emphasised in view of the rising intolerance of late witnessed in India. Tranquillity ought not to be maintained in all cases by sacrifice of liberty. Threats to law and order should be firmly put down rather than suppress freedom of expression, which it is the duty of every democratic state to uphold.
ÊDefamation is one of the heads of restrictions specified in the Constitution. Libel laws can have a chilling effect on freedom of expression and freedom of the press. The Supreme Court of India in its judgment in R. Rajagopal v. State of TN[30] broadly approved of the principles laid down by the U.S. Supreme Court in New York Times v. Sullivan[31] and by the House of Lords in the Derbyshire County Council[32]and laid down that there is no liability ã... even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages."[33]Ê The Indian position is more akin to Theophanus than Lange.ÊÊÊÊÊÊÊÊÊÊÊ
Contempt of Court is another permissible head of restriction on freedom of expression and freedom of the Press.Ê The Supreme Court has upheld the constitutionality of the Contempt of Courts Act 1952 on the ground that the Act did not impose unreasonable restrictions on the right of freedom of speech and is saved under Article 19(2).[34]
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Courts have frowned upon comments made in the press upon pending cases. The Punjab High Court ruled that "liberty of the press is subordinate to the proper administration of justice. The plain duty of a journalist is the reporting and not the adjudication of cases."[35] In the view of the Orissa High Court "the responsibility of the press is greater than the responsibility of an individual because the press has a larger audience. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.ä[36]
Although the judiciary has provided generous protection to freedom of the press in several cases, in practice the law of contempt in India is an instance of the paradox of the love-hate relationship between the press and the judiciary.In India any person, including the press, is free to criticise a judgment, to comment on it pungently, severely, because justice is not a cloistered virtue and can suffer the outbursts of even the wrong headed. However, it is an altogether different matter to impute motives to the judges who have delivered the judgment, to accuse them of dishonesty or their having been swayed by extraneous considerations.ÊÊÊÊÊÊÊÊÊÊ
But what is the position if the charge of judicial corruption happens to be true and the journalist is prepared to establish it to the hilt by unimpeachable documentary evidence? Therein lies the rub. Today under the law of contempt as it stands and has been interpreted in India truth is no defence to an action for contempt.[37]Ê Indeed if a person attempts to establish his allegations of dishonesty against a judicial officer that will be regarded as an aggravation of contempt.
This to my mind is a serious anomaly. Indeed it is highly arguable that the rejection at the threshold of the plea for establishment of the truth of the allegations operates as an unreasonable restriction on the freedom of the press and would render law of contempt vulnerable to grave constitutional challenge. It prevents exposure of corruption inter alia in the judiciary which regrettably is prevalent to some extent in the subordinate courts. Consequently many journalists and media persons succumb to self censorship and are deterred from exposing the misconduct of some errant judges. It is a mistaken notion that an enforced silence by the threatened use of the contempt power leads to enhancement of the public image of the judiciary when corruption within some of its ranks is the talk of the town. A corrupt judge should not get away under the shield of the law of contempt and thereby successfully suppress disclosure of judicial misdeeds. The law of contempt in India needs to be amended to provide the defence of truth coupled with public interest. It may also provide for imposition of stiff civil and criminal penalties upon a person who fails to substantiate his allegations. This would discourage frivolous and baseless allegations being leveled by disgruntled litigants or persons motivated by ill will.ÊÊÊÊÊÊÊÊÊÊÊ
I would like to conclude with some general observations.Ê We rightly prize press freedom and should be vigilant in repelling encroachments, direct or indirect, on the exercise of this precious freedom. Freedom of the press is undoubtedly one of the basic freedoms in a democratic society based on the Rule of Law. Nonetheless I venture to suggest that freedom of the press is not an end in itself.Ê It is the means for ensuring that in a democratic society there is good governance, transparency in administration, enforcement of accountability of the wielders of power and that human dignity and other human rights are respected. Whilst we must vigorously defend this freedom against onslaughts from fanatics one should not be fanatical about it and forget that Freedom of the Press entails abiding social responsibility. The public function which belongs to the press makes it an obligation of honour to perform its role with the fullest sense of responsibility.Ê There is no constitutional right of the press to defame.Ê The press does not and cannot have a licence to libel.
Joseph Pulitzer has rightly pointed out that ãwithout high ethical ideals a newspaper not only is stripped of its splendid possibilities for public service, but may become a positive danger to the community.ä[38]What is the position, I have often wondered, if a newspaper systematically and intentionally suppresses or manipulates information, restricts the content of information and denies its accessibility to the public, inflames communal and racial passions which leads to riots and violence? Has it not betrayed its true role, ceased to be a watchdog and failed to guard the Ark of the Covenant of democracy? It is suggested in certain quarters that such a newspaper cannot morally and legitimately lay claim to the protection and benefit of the constitutional guarantees of free speech though it may yet claim the fundamental right to carry on trade and business in which latter case the scope for imposition of restrictions is wider than in the case of freedom of the press.
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The crux of the matter is: Who will determine whether the newspaper in question has disentitled itself to the guarantee of freedom of the press? There will be problems. Determination of this question will lead to the insidious entry of censorship in such situations and that will pose a greater danger. Therefore rather than encourage such subversive thoughts, on balance we may console ourselves with the regret of Madison regarding abuse of press freedom, "that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, injure the vigor of those yielding the proper fruits".[39]ÊÊÊÊÊÊÊÊÊÊÊ
In the ultimate analysis press freedom will depend not so much on the state of the laws or the provisions of the Constitution but on the integrity and independence of the press. Lippman has rightly warned that the real danger to the press springs not so much from the pressures and intimidation to which it may be subject but from the sad fact that media persons can be captured and captivated by the company they keep, their constant exposure to the subtleties of power. Judicial protection is certainly helpful but that is not the sovereign panacea. Freedoms cannot be preserved for an inert people by the Constitution or the Courts. That is true of press freedom also. This lesson was bitterly brought home during the June 1975 emergency. With few honourable exceptions, the press chose to crawl when it was required to bend. However it can be confidently said that apart from the emergency aberration, the press on the whole has been a good watchdog. It has played an important and constructive role in India by exposing deception and secrecy in the working of the administration and public institutions. Several scams have been brought to light, for example the Bofors scam, by a vigilant press. Courts in India have unflinchingly performed their role of enforcing accountability of the holders of power, checking the virus of corruption and by upholding the Rule of Law.I do hope and trust that in the coming years these two mighty institutions of democracy will perform their respective roles in harmony, as natural allies and not as inveterate adversaries, remembering that the ultimate goal is of ensuring good governance and the good life for all its citizens.Ê
[1] Article 19 (1) All citizens shall have the right - (a) to freedom of speech and expression.
[2] Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India, AIR 1958 SC 578; Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305; Bennett Coleman Co. v. Union of India, AIR 1973 SC 106
[3Article 19(2) - Nothing in sub-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 interests of the sovereignty and integrity of 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.
Press Freedon in India (in short)
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 Terrorism Act[19] (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..."[20] With the liberalization starting in the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government. Organizations like Tehelka and NDTV have been particularly influential, e.g. in bringing about the resignation of powerful Haryana minister Venod Sharma.however this freedom of speech and expression is automatically canceled during emergency. The word Reasonable was not present in the original article 19(1)(a. But this was later on added to this article, and presently in India there are number of organizations who are really influential.
