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State Authority & Freedom of Press in India A Legal discourse

Introduction: Freedom of the press is a very important fundamental right in any democratic society. It is nothing but the extension of the freedom of speech and expression. A liberal democratic political philosophy espouses the values of individual liberty, social and economic equality and social justice. In an open society, people have to form their own opinions and take their own decisions. This is possible only when they are well informed. Press performs a very important function of providing information and thought to the people. The press is therefore rightly referred to as the fourth estate of the state. No freedom can however be absolute. Freedom of speech and expression is also subject to restrictions. The Constitution of India says that the state may impose reasonable restrictions in the interests of sovereignty and integrity of India, security of state, friendly relations with foreign states, public order, decency or morality and in relation to defamation and contempt of court. A restriction has to be reasonable and determination of reasonableness is done by the courts. The framers of the Indian Constitution were apprehensive of the extensive powers of judicial review. Therefore, they made the constitution specific and detailed. The specificity of a Constitution often inhibits judicial creativity and dynamism. Although The Supreme Court of India has tried to interpret the provisions guaranteeing fundamental rights in a very liberal way, sometimes one finds that it is constrained by the specificity of the constitutional text. In the United States, the Constitution does not mention that the rights are subject to any restrictions. The restrictions have been spelt out by courts through judicial review. The courts therefore got the freedom to develop the jurisprudence of rights and restrictions in such a way as to strike a balance between freedom and social control. In India, The Supreme Court of India seems to be inhibited by the specific expressions contained in clause 2 of Article 19. A pedantic interpretation is inevitable when the constitutional text is so specific and detailed. The court is therefore bound by the words of The Constitution. The Supreme Court has recognised that a citizen has a right to have an honest and efficient Government. This is obvious from the fact that the court has entertained petitions in protection of the independence of the Judiciary. These petitions were entertained because they ultimately sought good governance as a right of the citizen. Freedom of the Press in the very least, is a process that influences the politics of a country. The judiciary has time and again sought to protect it from unreasonable laws and restrictions.

Aims and Objectives: To study and analyse The Officials Secrets Act, 1923. To know the perception of the legislature and executive towards the press and its freedom one hand and also the judiciarys perception of the press and its freedom when dealing with cases before it. Sources of Study: Books written by Constitutional Law experts. Scope and Limitations: Concept, importance and role of Press in a democracy. Literature used: 1. The Law of Freedom of Press in India, by D.D Basu was used extensively for legislations and enactments on Press Freedom. 2. The various commentaries used in the paper were sourced mainly from V.R Krishnan Iyers, Essays on Press Freedom.

Chapter Scheme

Chapter 1 deals with the Meaning of Press, what constitutes the press and why the press is important in a democracy. Chapter 2 deals with the meaning of freedom of the press, its status in India with respect to development. Chapter 3 deals with grounds of restrictions on freedom of the press. Chapter 4 deals with the Officials Secrets Act in particular and analyses why it is unconstitutional.

CHAPTER 1
What is the Press? In dealing with the legal aspect of the press and with the law relating to the press, we have to take into account all the foregoing implications and functions of the Press. They are: a) The Press as an establishment where printing is done. b) The Press as a medium of publication and transmission of information, in which connection arises the question of freedom of the press. c) The products of printing such as pamphlets, books, etc., and products of transmissions such as radio, television news, etc. d) Those who are engaged in the production of the foregoing articles, such as printer, editor, publisher, author and journalist. e) The business aspect of a media establishment particularly as an employer, or a publisher of books for consideration. f) The Press as a medium of expression, publicity, criticism, communication, etc., in relation to an individual (involving defamation), in relation to the state (including sedition, incitement to offences and the like), in relation to the courts (involving contempt of court), in relation to Parliament (affecting privileges of the Parliament), and in relation the public in general (involving public order and decency).1

Importance of a Free Press The Press in its publications and transmissions deals with various subjects like politics, social, moral, religious or other matters of public interest local, national or foreign. Since the advent of the Press as an essential mass medium and as a pillar of democracy, it has engaged the special attention of every Government. Through every stage of human history, the aim and aspiration of the human civilisation has been a free society. There are various institutions in a free democracy which we cherish as essential preconditions to the maintenance of Freedom. They are: 1. The government, because without the Government there would be anarchy and life would be nasty, brutish and short. 2. The opposition, because without effective opposition there is no true democracy. 3. The judiciary, an independent judiciary free from the executive and legislature. 4. The Press is the fourth estate and a vital pillar of democracy.2

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Basu, D.D., Law of the Press in India, (1980), p 5. Masani, M.R., The Importance of a Free Press, (1970).

CHAPTER 2
Meaning of the Expression Freedom of the Press Freedom means absence of control, interference or restriction. Hence, the expression freedom of the Press means the right to print, publish, transmit without any interference from the State or any public authority except insofar as it is authorised by the Constitution and by the laws which are constitutionally valid. This is because of the principle universally accepted in the democratic system that freedom of the press is not or should not be an absolute license to print, publish and transmit whatever one pleases. This principle can be found in our political system too. In our Constitution, the press as an institution has no constitutional or legal privilege as was made clear by The Supreme Court of India on various occasions.3 What is known as the freedom of the press is nothing but the freedom of expression of every citizen guaranteed by The Constitution under Article 19 (1) (a). At the same time, this constitutionally guaranteed freedom of the press is not absolute, it is subject to reasonable restrictions enumerated under article 19(2) of the Constitution.

Need for the Freedom of the Press The argument in favour of the freedom of the press is the same as that for the freedom of speech but with a stronger appeal which arises from the special features of news matter, that is Freedom of press is an extension of Freedom of speech and expression. Democracy can endure and thrive not only under the vigilant eye of its legislature but also under the care and guidance of public opinion, and the press, is par excellence, the vehicle through which public opinion becomes articulate. A democratic political society or government which is founded on the consent of the people and the contribution of their ideas to public questions, can rest only on free debate, and free exchange of ideas amongst the people. Truth can emerge only through the unhampered interplay of competing ideas. The press has a vital role to play in collective decision making. After mature deliberation upon any issue, unless there is an opportunity for free exchange of views among the participants which in a representative democracy like ours means the electorates as well as the representatives assembled in the Parliament. The widest dissemination of information from diverse sources is necessary for public education, which is the foundation of a democratic society. It is a means of free discussion and criticism that the government remains responsive to the will of the people peaceful change is effected and errors of the government

See Sharma v. Srikrishna, AIR 1959 S.C 395 para 13.

are peacefully corrected and eliminated through the process of popular government.4 Further, no less important is the function of the press in exposing the abuses of power by and corruption of public officials and in keeping them responsible to the people whom they are expected to serve. Representative democracy, like ours, the foundation of which is a free election based on reason, cannot function in a society where there is no freedom of speech.

For the press to play its political role in a democracy, it must be not only free but also independent. Freedom and Independence of the press are two inseparable and important attributes of the press.

Need for Restrictions on the Freedom of the Press No freedom can be unrestrained. The freedom of the press postulates that the press should have the right to print anything which it thinks fit for publication. But this freedom cannot be absolute or unfettered. In an organised society, the rights of the press have to be harmonised with its duties and responsibilities towards society. For such harmonisation such restraints and regulations are necessary. What is objectionable is not restrictions or regulations as such but the imposition of arbitrary and excessive restrictions which would make the freedom a mockery. Public order, security of the state, decency, morality, friendly relations with foreign countries, etc., must e safeguarded from the freedom of the press. Our constitution in Article 19(2) provides for such grounds of limitations on freedom of the press. It thus, enables, the government to legislate on such grounds regulating and restricting press freedom. These legislation perform two functions- On one hand, they guarantee freedom of the press and on the other hand they restrict the freedom of the press so that it does not abuse its freedom and violate the grounds of basic restrictions as guaranteed in the Constitution.

See Grosjean v. American Press Co., (1953) 297 U.S 233.

Development of the Freedom of the Press in India Since there were no fundamental rights in India prior to independence, there was no guarantee of the freedom of expression or of the press. The Constitution of India guaranteed in Article 19(1)(a) the fundamental right of freedom of expression, and the Supreme Court lost no time in declaring that the freedom of the press was included in that guarantee.5 The result was that the press could not be subjected to any restrictions by making a law unless that law itself was included in that guarantee. In other words the press could not be subjected to any restrictions by making a law unless that law itself was constitutionally valid, i.e., consistent with clause (2) of Article 19. This reveals the Indian Judiciarys interpretation of the freedom of the Press. Anything which indirectly affects the independence of the editorial authority of a newspaper would also constitute an interference with the freedom of the press. Freedom of the press implies that the choice of what is to be printed in the editorial or news columns of a newspaper should rest with the judgment of the editors and not the government or any public official. The reason is patent, namely, the freedom of expression cannot be said to exist where the government dictates what views or information should be published through the medium of expression.

CHAPTER 3
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See Romesh Thapar v. State of Madras, AIR 1950 SC 124; Brij Bhushan v. State of Delhi, AIR 1950 SC 129.

Grounds of Restrictions In accordance with Article 19(2) the Parliament has enacted various legislations restricting freedom of speech and of the press on grounds of: (a) Sovereignty and Integrity of India This ground was introduced in clause (2) of Article 19 by the 16 th Amendment in 1963 in the light of such activities like Dravida Kazhagam in the south and the demand for plebiscite in Kashmir which were advocating secession and had tendency to endanger sovereignty and integrity of India. Therefore, to curb such activities through law, this ground came to be in existence.

(b) The security of the State It is imperative for the government to protect the security of state and thus to impose restrictions in the form of laws on the press that would threaten its security externally and internally. External aspect of security implies that when there is external aggression or threat hereof Article 19(2) gives authority to the state to impose restrictions on the press by prohibiting or punishing any publication which interferes with the war efforts of the nation. Internal aspect means the state can impose restrictions on the freedom of the press when there is an absence of it which might overthrow the government established by law through force, violence or unconstitutional means.

(c) Friendly relations with foreign states This ground of restriction was inserted in Article 19(2) by the First Amendment Act, 1951. It enables the state to legislate and thus curb any attempt on the part of citizens to imperil friendly relations with foreign states.

(d) Public order It is an important duty of the state to restrict the freedom of speech and freedom of the press In order to protect public order. At the same time, care and caution should be taken by the government or legislature not to render extinct but to regulate or restrain freedom of the press in the name of public order.

(e) Incitement to commit offence.

(f) What constitutes an offence is not laid down in the Constitution. However, it is left to the judiciary to determine as to what constitutes an incitement of an offence keeping in view the facts and circumstances of each case.

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CHAPTER 4
The Press Legislations and the Press As observed in the earlier chapter, freedom can never be absolute. The press too cannot enjoy absolute freedom. Some of the important legislations exercising control over the press are as under: a) b) c) d) e) f) g) h) The Official Secrets Act, 1923. The Law of Defamation The Censorship Act The Copyright Act The Law of Obscenity The Press Council Act, 1978 The Law of Parliament Privileges The Contempt of Court Act

The Officials Secrets Act, 1923. The two wings of the government, i.e., the legislature and the judiciary function in the open. These departments do not normally carry out their operations in secrecy. The legislature does its business through open debates by the representatives of the people to which both the people and the press have access. Similarly, the judiciary decides cases after giving a hearing to the parties in an open court. It is only the executive branch of the government that does its business in secret chambers to which the people have limited access The concept of an open government is the direct emanation from the right to know which is implicit in the right to freedom of speech and expression guaranteed under Article 19(1)(a). Disclosure of information with regard to the functioning of the government must be the rule, and secrecy an exception, justified only where the strictest requirement of public interest so demands. The citizens right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic state. The demand for openness in the government is based principally on two reasons: (a) Democracy doesnt consist merely in people exercising their franchise once in every five years to choose their rulers and then retiring in passivity without taking any interest in the government. (b) Democracy has a more positive content and its orchestration has to be continuous and pervasive. This means that people should also exercise sound judgment on the conduct of the government and the merits of public policies, so that democracy does

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not remain merely a sporadic exercise in voting but a continuous process of the government.

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Conclusion: The debates in the Constituent Assembly make it very clear that freedom of the press as a separate law was not adopted. Dr. Ambedkar and others were emphatic that freedom of speech and expression did not include the freedom of the press. This views was further reinforced by the Supreme Court in deciding the cases: Express Newspaper v. Union of India, Bennett Coleman v. Union of India and Romesh Thapar v. State of Madras. The Supreme Court clarified that not only is freedom of press implicit in the freedom of speech and expression but it also included freedom of propagation of ones ideas, publication, circulation and transmission. When India achieved its independence there was a powerful urge to exercise unfettered right to freedom and at the same time there was the realisation that the state that had been brought into existence was an infant one, therefore, as we have seen in the paper, The Drafting Committee showed wisdom in enumerating those rights that were considered to be fundamental for the individual under Article 19(1)(a) and also incorporated along with it such checks on them as will ensure the security of the state under Article 19(2). It was thus the apprehension, fear and far-sightedness of The Drafting Committee that made them adopt a golden mean between the two extremes. Since the enactment of The Constitution, the freedom of the press has very much depended on the interpretation and judgment of the judiciary. The Supreme Court has acted as the custodian of the freedom of the press. At the same time, The Supreme Court too on its part did not shy away from the stupendous task of protecting the freedom of the press whenever it found it unconstitutional or violated the freedom of the press itself.

What is objected to by the press or The Supreme Court is not the reasonable limitation or restriction in the press but the arbitrary restrictions of the government on the press. As there can be no immunity of the press from general laws there are various statutory laws within which the press has to find its freedom.

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References: V.R Krishnan Iyer, Essays on Press Freedom. E.S Venkataramaiah, Freedom of the Press. M.R Masani, The Importance of a Free Press. D.D Basu, The Laws of Freedom of Press in India.