Freedom of Press

“Were it left to me to decide whether we should have a government without newspapers or newspapers without a government I should not hesitate a moment to prefer the latter”<!–[if !supportFootnotes]–>[1]<!–[endif]–>

Freedom of Press has perpetually 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 democracy.”<!–[if !supportFootnotes]–>[2]<!–[endif]–> Press is an indispensable element in the working of a modern nation. The newspapers are the barometer of the true character of the Government whether it is authoritarian or democratic. To restrict substantially the rights of speech, press, assembly and voting… is to cut the arteries that feed the heart of the democratic model.<!–[if !supportFootnotes]–>[3]<!–[endif]–> Therefore Press is rightly considered as ‘the fourth pillar’ or ‘the fourth estate’ of a democracy.

No state tolerates absolute freedom of expression. There are reasonable restrictions to curtail this right. All states operate codes which demarcate boundaries on the content published or broadcast by the mass media. What freedom connotes and what confinements should apply to it, form ingredient of a never-ending political debate. On one extreme lenient sates like the US insists that the Congress shall make no law which abridges the freedom of speech or press<!–[if !supportFootnotes]–>[4]<!–[endif]–>. On the other extreme authoritarian states like the Saudi Arabia require the media to respect the words and laws of the State. Publishing of anything that might lead to internal rifts or struggles or might harm the foreign relations or security is forbidden and punishable. The researcher cannot delve deep on these extreme circumstances but infers that for establishing political order some countries protect press freedom and for the same objective some countries restrict press freedom. Free Press is the right to publish and print our thoughts and opinions freely, without the official censorship most countries impose.

The press has a crucial role in shaping the policies of a nation. In order that the people may form rational judgement it is vital that they must be apprised of all aspects of a question on which a verdict is required, so that they arrive at the right conclusion. The right to utter honest and reasonable criticism on matters of public concern is a source of strength to the community, and the press being a powerful medium of mass communication should be free to play its role. Denial of freedom of the press to citizens would necessarily undermine its power to influence public opinion and run counter to the principles of democracy itself.

Free press is hailed as the eyes and ears of society. To build a strong and viable society there has to be the widest possible dissemination of information form diverse sources. It is attributed as a medium which allows for a diversity of ideas and outlooks. It is not an instrument of a sole view or state propaganda. The media is ‘free’ specifically for the reason that they are not subject to centralized control. Any control on content like a state press or state censorship is treated as an infringement of these rights representing the loss of freedom. The media treat elections as the blood stream of democratic process, and their coverage provides citizens facts on which they base their vote.

The key contents of the freedom of press are listed below:

<!–[if !supportLists]–>§ <!–[endif]–>Freedom to gather information from diverse and antagonistic sources, on a competitive basis, free from any monopolistic control from the government.

<!–[if !supportLists]–>§ <!–[endif]–>Freedom to inform public true facts without fear or favour.

<!–[if !supportLists]–>§ <!–[endif]–>Right to have free access to sources of information.

Free expression is necessary for

• the development of individual personality
• the attainment of truth
• participation by members of society in political and social decision-making
• for maintaining a balance between stability and change in society

Chapter 1

Right to Freedom of Press:

An Indian Perspective

 

One of the constitutional guarantees unceasingly requested by the freedom fighters during the British Raj was ‘Freedom of the Press’. During the framing of the Constitution the founding fathers bestowed enormous significance to Freedom of the Press. They thought that fundamental to the concept of a free press is the freedom of political opinion and at the nucleus of that freedom lies the right to censure and criticize the government. However freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights<!–[if !supportFootnotes]–>[5]<!–[endif]–>. B. N. Rao, the Constitutional Advisor to the Constituent Assembly assured 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.<!–[if !supportFootnotes]–>[6]<!–[endif]–>

This concept has been warranted by the Supreme Court of India. In numerous judgements the Supreme Court has ruled that Freedom of the Press is contained in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution<!–[if !supportFootnotes]–>[7]<!–[endif]–>. Thus freedom of the press by judicial interpretation has been accorded constitutional status. This freedom can be restricted if the restriction imposed has 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. The law must also fall squarely within one or more heads of permissible restrictions specified in Article 19(2)<!–[if !supportFootnotes]–>[8]<!–[endif]–>. In a landmark judgment in the case of Sakal Papers<!–[if !supportFootnotes]–>[9]<!–[endif]–>, the Supreme Court ruled that the State cannot 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 Article 19(2). Moreover, 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.<!–[if !supportFootnotes]–>[10]<!–[endif]–>

The validity of the restriction is justiciable. Courts in India exercising the power of judicial review can nullify laws and measures which do not comply with the above requirements. The Indian judiciary 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. In essence, it is the right of the people to know.

Reasonable restrictions

Article 19(2) of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under following heads:

• 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.<!–[if !supportFootnotes]–>[11]<!–[endif]–> It does not refer to the ordinary breaches of public order which do not involve any danger to the State.

• Friendly relations with foreign States: This restriction was added by the Constitution (1^st Amendment) Act, 1951<!–[if !supportFootnotes]–>[12]<!–[endif]–>. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardize the friendly relations of India with other nation(s).

• Public order: This ground was also added by the 1^st Amendment in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapar’s case<!–[if !supportFootnotes]–>[13]<!–[endif]–> where it refused to permit the imposition of restrictions on the right to free speech in the interests of public order.<!–[if !supportFootnotes]–>[14]<!–[endif]–> The expression ‘public order’ connotes the sense of public peace, safety and tranquillity.

• Decency and morality: In an English case R. v. Hicklin<!–[if !supportFootnotes]–>[15]<!–[endif]–>, the test ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’ was laid.<!–[if !supportFootnotes]–>[16]<!–[endif]–> This test has been upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra<!–[if !supportFootnotes]–>[17]<!–[endif]–> . 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 the Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.

• 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 by Section 2 of the Contempt of Courts Act, 1971.

• Defamation: The constitution prevents any person from publishing any statement that injures the reputation of another. With the same view, defamation has been criminalized in India by Section 499 of the I.P.C.

• Incitement to an offence: This ground was also added by the 1^st Amendment. The Constitution prohibits a person from making any statement that incites people to commit offence.

• Integrity and Sovereignty of India: This ground was added by the Constitution (16^th Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India or preaches secession.

A dictum of the Supreme Court described the freedom of Press as “the Ark of the Covenant of Democracy”<!–[if !supportFootnotes]–>[18]<!–[endif]–> and as the most precious of all the freedoms guaranteed by our Constitution. 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.<!–[if !supportFootnotes]–>[19]<!–[endif]–> In a celebrated decision, Bennett Coleman & Co. v. Union of India 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.

The owner of a Telugu daily, Eenadu, complained that government had withdrawn advertisements from its paper owing to extraneous reasons, namely its criticism of the government, and this had adversely affected the circulation of the paper and its revenue. 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 to 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 government.<!–[if !supportFootnotes]–>[20]<!–[endif]–>

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.<!–[if !supportFootnotes]–>[21]<!–[endif]–>

Freedom of the Press encompasses the freedom ‘not to’ publish any news, article, correspondence or any other matter, nor to include anything on the dictation of any authority. Freedom of the Press would be impaired if the editorial policy of the newspaper is controlled or influenced by public authorities, political parties, pressure groups, proprietors and advertisers.

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. This is restricted by Article 19(6) which includes provisions for public interest, professional and technical qualifications and state nationalization- total or partial.<!–[if !supportFootnotes]–>[22]<!–[endif]–>

 

The SC emphasized that in the today’s free world freedom of press is the heart of social and political intercourse. It observed that the press has nowadays assumed the role of the public educator and its purpose is to advance public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.<!–[if !supportFootnotes]–>[23]<!–[endif]–> The SC further stated that neither the Government nor any instrumentality of the Government or any public sector undertaking run with the help of public funds can shy away from articles which expose weaknesses in its functioning and which pose a threat to their power.<!–[if !supportFootnotes]–>[24]<!–[endif]–>

Chapter 2
Threats to Press Freedom by State

Paris-based media advocacy group Reporters Without Borders ranks countries in terms of media freedom. In the ranking of countries from best to worst, they pegged India at the 115^th spot.<!–[if !supportFootnotes]–>[25]<!–[endif]–>

The State remains the source of the most potential threat to Press freedom. A special legislation called the Press (Prevention of Objectionable Matters) Act was adopted in 1951 which inter alia gave the government powers to intercept material going to the Press through the Posts and Telegraphs. Some governments thought it proper to take steps against newspapers whose policy they did not like.

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. That is the real vice of prior restraint and its irresistible attraction to the censor. Is prior restraint per se unconstitutional? The American Convention on Human Rights (San Jose) 1969 (ACHR) expressly states that freedom of expression “shall not be subject to prior censorship”.<!–[if !supportFootnotes]–>[26]<!–[endif]–> However indeed, its necessity has been recognised in exceptional cases by the U. S. Supreme Court in the case of Near v Minnesota<!–[if !supportFootnotes]–>[27]<!–[endif]–>. The Court observed that the protection even as to previous restraint is not absolutely unlimited and listed as exceptions obstructions to recruitment during war, publication of military movements, obscenity, incitements to acts of violence and the overthrow by force of orderly government, and words that “may have all the effect of force”. The Supreme Court of India in May 1950 had to resolve the question in Brij Bhushan v. The State of Delhi.<!–[if !supportFootnotes]–>[28]<!–[endif]–> 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. But the court held that imposing censorship without any time limit and without providing any right of representation is unconstitutional.

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<!–[if !supportFootnotes]–>[29]<!–[endif]–>. Under the Indian Constitution during an emergency, fundamental rights stand suspended. Censorship becomes immune from constitutional challenge. Taking advantage of the emergency, numerous repressive measures were adopted in the form of executive non-statutory guidelines. 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 government measures.<!–[if !supportFootnotes]–>[30]<!–[endif]–> Consequently anything that criticised governmental measures or action was invariably banned, even if the criticism was sober and moderate. The censor’s scissors applied in “killing” news of the opposition, judiciary and protestors. The Bombay High Court in its landmark judgment in Binod Rao v. Masani<!–[if !supportFootnotes]–>[31]<!–[endif]–> declared: “It 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.” The Gujarat High Court in C. Vaidya v. DâPenha<!–[if !supportFootnotes]–>[32]<!–[endif]–> criticized the censorship directives for imposing upon the people “a mask of suffocation and strangulation”. In R. Rajagopal v. State of TN<!–[if !supportFootnotes]–>[33]<!–[endif]–> 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. The Court held that the remedy of public officials/public figures, if any, will arise only after the publication.

The Court has however accepted prior restraint in the case of exhibition of motion pictures because of the instant appeal of the motion picture. It, however, emphasised the necessity for corrective machinery in the shape of an independent tribunal and also a reasonable time limit for the decision of the censoring authorities.

The judiciary has provided generous protection to freedom of the press in several cases. 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.

Laws such as the Official Secrets Act and Prevention of Terrorism Act have been used to limit press freedom. 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…” 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.

Chapter 3
Media Ethics & Accountability of Press

“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.”

Lord Denning in Road to Justice

In 2008 when terrorists attacked Mumbai, the news channels were showing live pictures of the commandos and other personnel which could have been seen by the terrorists through satellite phones or other equipment. This could provide them knowledge of the operations going on outside. This could have been a potential threat to the personnel fighting there. Media institutions, on their part, must recognize that they have to employ their liberty within some bounds.

Bias in the media is concerned with whether the media favour one point of view at the expense of others.<!–[if !supportFootnotes]–>[34]<!–[endif]–> Prejudice by media can mislead the public about some critical issues. Inadequate or erroneous information is likely to result in misconceived political acts.

People can only form opinions on the basis of the knowledge they have, and the media are primarily responsible for providing this knowledge.<!–[if !supportFootnotes]–>[35]<!–[endif]–> If a newspaper systematically and intentionally suppresses or manipulates information, restricts the content of information and denies its accessibility to the public it may inflame communal and racial passions which might lead to riots and violence. Such a newspaper cannot morally and legitimately lay claim the constitutional guarantee of free speech though it may claim the fundamental right to carry on trade and business. In such case the scope for imposition of restrictions should be wide.

‘Yellow journalism’ is journalism that features sex scandals, scandal-mongering, sensationalism, or other unethical or unprofessional practices by news media organizations or journalists. It can be described as news programming which blends “soft” journalism and entertainment rather than emphasizing more important news values.<!–[if !supportFootnotes]–>[36]<!–[endif]–> The Freedom of the Press is likely to be abused by what is called ‘yellow journalism’. Yellow Journalism covers “any malicious and wilful publications of reports which are known to be false or are not believed to be true, as well as the building up of a body of falsehood around a core of fact. It would include also the lurid exposure, unrelated to public interest, of the personal lives of the individual or even unwarranted intrusions into their private lives. Such publications are made, with or without intention to levy blackmail directly or indirectly, and sometimes only to cause pain or humiliation. We would also include therein indulgence in the obscene or in language suggestive of the obscene with deliberate intent to debate public taste. There is also the use of abusive language and writings offending against public decency.”<!–[if !supportFootnotes]–>[37]<!–[endif]–>

 

‘Corporate media’ is applied to news conglomerates whose business interests are counter to the public interest. For example, such media may avoid incisive reporting on influential corporations or limit public information about proposed government regulation of media industries. Collusion between political, business and media worlds sometimes brings allegations of illegal or unethical practices ranging from fraud to antitrust violations.

 

‘Pseudo-news’ organizations draw wide-ranging audiences by issue-based entertainment. India TV has been often criticized to be a pseudo-news organization as it neglects serious issues and shows less important incidents.

 

‘Parachute journalism’ is a term used to describe the practice of ‘parachuting’ or forcing journalists into an area to report on a story in which the reporter has little knowledge or experience. The lack of knowledge and tight deadlines often result in inaccurate or distorted news reports, especially during breaking news.<!–[if !supportFootnotes]–>[38]<!–[endif]–> Critics contend this type of journalism usually consists of reporting mere basic details and often includes the misrepresentation of facts and ignorance of contextual issues. The journalist often lacks in-depth knowledge of the situation and is usually disoriented because of the strangeness of the environment he or she is in. Often the only information immediately available is from other news organizations or from “official” or bureaucratic sources that may contain propaganda. Due to a lack of time and knowledge, background research and independent investigation of the events at the site of occurrence might not be done.

In Bijoyananda v. Bala Krishna the court held that “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.

In the light of the above mentioned malpractices which can be adopted by the media arises the need to check Press Freedom. This calls for a machinery to certify a high pattern of accountability on the part of the press.<!–[if !supportFootnotes]–>[39]<!–[endif]–> In India, this task is performed by the Press Council of India.<!–[if !supportFootnotes]–>[40]<!–[endif]–> It is envisaged as an agency for self-regulation, and preservation of the freedom of the Press. The Press Council serves as a watchdog over standards of journalism in the country. One of the objects of the council is to “maintain and improve the standards of newspapers and news agencies in India.” It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively.<!–[if !supportFootnotes]–>[41]<!–[endif]–>

Thus the public function which belongs to the press makes it an obligation to perform its role with the fullest sense of responsibility.

It can be said that the press largely has been a fine watchdog. It has played an important and constructive role in India by exposing dishonesty and concealment in the operation of the administrative and public institutions. Several scams like the Bofors scam, match-fixing incident, etc. have been brought to light by the vigilant press. What should never be ignored while assessing the Press in the Indian context is that it is only a Free Press which can assist in developing a body of citizens who are well informed both regarding current events and also about the problems facing the country and the alternatives available for tackling them. It is only such a Press that can enable a young democracy like India to stay alive, and also help its development in a manner where social justice is ensured and the interests of the common people served. Courts in India have fearlessly performed their role of enforcing accountability of the executive, checking the menace of corruption and by upholding the Rule of Law. I do hope that in the coming years the institutions of democracy will perform their respective roles in harmony, as natural allies remembering that the ultimate goal is of ensuring good governance and a better life for all citizens.

I would like to conclude with some general observations. We rightly value press freedom and should be cautious in preventing direct and indirect encroachments on this precious freedom. Freedom of the press is undoubtedly one of the basic freedoms in a democratic society based on the Rule of Law. I suggest that freedom of the press is not an end in itself. It is the means for ensuring that in a democratic society there is good governance, transparency, accountability and respect for human rights and dignity.

I would like to conclude by citing 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.”

Browne, Ken, An Introduction to Sociology 3^rd edition (Polity Press, 2005, Cambridge)

Freedom of the Press, Wikipedia, available at http://en.wikipedia.org/wiki/Freedom_of_the_Press

Freedom of the Press, PUCL Bulletin, July 1982, available at www.pucl.org

Iyer, Justice V. R. Krishna and Sethi, Dr Vinod Essays on Press Freedom (Capital Foundation Society, 1996, Delhi)

Parachute Journalism, Wikipedia available at http://en.wikipedia.org/wiki/Parachute_journalism

Press Council of India available at www.presscouncil.nic.in/home.htm

Research and Reference Division Mass Media in India 1988 (Ministry of Information and Broadcasting, 1989, New Delhi)

Singh, M. P. V. N. Shukla’s Constitution of India 9^th edition (Eastern Book Company, Lucknow, 1998)

Singh, S. S. The Press and the Indian Parliament (Classical Publishing Company, 2001, New Delhi)

Sorabjee, Soli J. Freedom of Media – Constitution and the Court (The University of Melbourne, 22 May 2000) available at www.asialink.unimelb.edu.au

Street, John Mass Media, Politics and Democracy (Ch-12 - A Free Press: Democracy and Mass Media pp. 250 - 272)

Trager, Robert and Dickerson, D. L. Freedom of Expression in the 21^st Century (Pine Forge Press, 1999, Thousand Oaks)

Yellow Journalism, Wikipedia available at http://en.wikipedia.org/wiki/Yellow_journalism

 

---

<!–[endif]–>