Chapter-6

INDIAN JUDICIARY IN THE AREA OF FREEDOM

OF SPEECH AND EXPRESSION AND MEDIA

6.1. Introduction

The preservation of the democratic life is essential for the people to

express their feelings for making their views to celebrate the freedom. The
press, a powerful medium of mass communication, should be free to play its
role in building a strong viable society. Denial of freedom of the press to
citizens would necessarily undermine the power to influence public opinion
and be counter to democracy. Freedom of press is not specifically mentioned in
article 19(1) (a) of the Constitutionbut only freedom of speech and expression
are mentioned there. It was made clearIn the Constituent Assembly Debates by
Dr. B.R. Ambedkar, Chairman of the Drafting Committee.He expressed that
the freedom of press means the freedom for the press and an individual or a
citizen. It was the same the right of expression. The framers of the Indian
Constitutionconsidered that freedom of the press is an essential part of the
freedom of speech and expression which is guaranteed in Article 19 (1) (a) of
the Constitution.

In Romesh Thapper v State of Madras1 and Brij Bhushan v State of

Delhi2, the Supreme Court took it for granted the fact that the freedom of the
press was an essential part of the right to freedom of speech and expression. It
was observed by Patanjali Sastri J. in Romesh Thapper‟s case that freedom of
speech and expression included propagation of ideas, and that freedom was
ensured by the freedom of circulation. It is clear that the right to freedom of
speech and expression carries the right to publish and circulate one‟s ideas,
opinions and other views with complete freedom and resort all available means
of publication. The right to freedom of the press includes the right to propagate

1. Romesh Thapper v State of Madras, A.I.R. 1950, S.C. 124

2. Brij Bhushan v State of Delhi, A.I.R. 1950, S.C. 129; 1950, S.C.R 605

1
publish and circulate ideas and views. However, the freedom of the press is not
absolute, just as the freedom of expression is not. Public interest has to be
safeguard by Article 19(1)(2) which lays down reasonable limitations to the
freedom of expression in matters affecting: a. Sovereignty and integrity of the
State b. Security of the State c. Friendly relations with foreign countries d.
Public order e. Decency and morality f. Contempt of court g. Defamation h.
Incitement to an offence

The American Constitutionguarantees the freedom of press in terms of

first amendment; whereas the Constitution of India does not guarantee the same
freedom of expression. The American Press Commission 3 has said, “Freedom
of press is essential to political liberty. When man cannot freely convey their
thoughts to one other, no freedom is secured, where freedom of expression
exist the beginning of free society and means for every retention of liberty are
already present. Free expression is therefore unique among all liberties”.

Lord Mansfield says, “The liberty of press consists in printing without

any license subject to the consequences of law”. The liberty of press means
liberty to print and publish what one please, without the previous permission.

The Judicial decisions, however, have made it amply clear that it is

guaranteed under Article 19(1)(a) of the Constitution. The ambit of the freedom
of press largely depends upon the judicial approach. In the last few decades the
Constitutioncame into force, a sufficient body of case law has grown up upon
the subject. These cases show that how the State often tried to make the press
less active by adopting various methods, i.e. Legislative and administrative
claiming that the grounds were saved by Article 19 (2) of the Constitution.

In Romesh Thappar's case, Patanjali Sastri J. delivering the majority

opinion observed: “The Constitutionhas placed in a distinct category these
offences against public order which aim at undermining the security of State or
over throwing it, and made their prevention the sole justification for Legislative

3. Brij Bhushan v.State of Delhi, AIR 1950, SC 129

abridgement of freedom of speech and expression, that it is to say, nothing less
than endangering the foundations of the State or threatening its overthrow
could justify curtailment of right to freedom of speech and expression"4

The Supreme Court expressed the opinion that a statute seeking to

restrict the freedom of speech and expression for maintaining the public order
or ensuing public safety could not be considered valid in as much it purported
to impose restrictions for a more comprehensive and wider purpose than
contemplated by the Constitutional provisions which delimited the sphere of
Legislative abridgement by words, "undermines the security of or tends to
overthrow the State".

The Court, thus, made it clear that only the serious and aggravated forms
of public disorder calculated to endanger the security of State and not the
relatively minor breach of peace of purely local significance upon which the
freedom of speech and expression may be curtailed.

While considering the laws with the problem of public order the
Supreme Court adopted a broader viewin earlier cases. In Ramji Lai Modi case,
the Supreme Court interpreted the words 'in the interest of public order' as
wider than 'for the maintenance of public order' and, therefore, a law providing
for curbing the activities which have a tendency to cause public disorder, is
valid.5

The broad approach was questioned in Virendra's case 6 where the public
order was considered of extreme importance and was given priority over the
freedom of the press. The Court observed: "Quick decision and swift
andeffective action must be the essence of these powers and exercise. It must,
therefore, be kept to the subjective satisfaction of the Government charged with
the duty of maintaining law and order. To make an exercise of these powers

4. RomeshThapper V. State of Madras, A.I.R. 1950, S C, 124 at p. 128

5. Ramji Lai Modi V. State of U.P. A.I.R.. 1957, S.C. 620
6. Virendra v The State Of Punjab and another‟s, A.I.R, 1957 896
justifiable and subject to judicial Scrutiny will defeat the very purpose of the
enactment.

But in R.M. Lohia‟s7 case the Supreme Court did not follow its own
view and narrowed the sweep of public order as a ground of reasonable
restriction so as to exclude normal 'law and order' and 'security of State'
situations and include only such situations where there were threats to public
safety and tranquility. Subba Rao, J; Stated that the words of Das, C.J. in
VirendraV.State of Punjab8 did not indicate that any remote or fanciful
connection between the impugned Act and the public order, would be sufficient
to sustain its validity. The Court proceeded to State that "The learned Chief
Justice was only making a distinction between an Act which expressly and
directly purported to maintain public order and one which did not expressly
State the said purpose but left it implied therefrom, and between an Act that
directly maintained public order and one that indirectly brought about the same
result. The distinction does not ignore the necessity for intimate connection
between the Act and the public order sought to be maintained by the Act.' 9

It is difficult to State precisely what Subha Rao, J., meant to say in an

elaborate analysis of the amended Article 19(2): he certainly did not dispute the
distinction made by the Supreme Court between the expressions "For the
maintenance of public order" and in the "interest of public order". But it is
submitted that contrary to the terms of those decision, he held that distinction
was only this, that where as the expression "for the maintenance of public
order" meant that the restrictions directly referred to such maintenance, "in the
interest of public order" meant that it was merely implied. The judicial opinion
is contrary to well settled principles laid down by the Supreme Court itself, and

7. 1960, AIR 633, 1960, SCR (2) 821

8. A.I.R, 1957 896, 1958 SCR 308
9. Suptt. Central Prison V. Ram Manohar Lohia A.I.R, 1960, SC. at p.p. 639 - 40

226
ought to be over ruled as being clearly wrong and productive of public
mischief.10

The Constitutional position is, therefore, visited with a vulnerable lack

of clarity where on the one hand in Ramji Lal Modi's 11 case wider interpretation
of the phrase 'in the interest of public order' is insisted but the same was not
followed in Virendra's case. On the other hand, Lohia's case suggested that
there are some criterions for testing the validity of State action. The evaluation
of such test is politically necessary because sedition had an empirical history.
But such cases are rare and the apex court by and large has supported the
government's plea for almost a blanket power to deal with these situations.

Bhagavati J., in Express Newspaper's case developed a new approach of

"direct and inevitable effect test”, in order to test the validity of a law imposing
restrictions upon the freedom of press. The Court opined that

"All the consequences which have been visualized in this regard by the
petitioners viz. the tendency to curtail circulation and thereby narrow the
dissemination of information fetters the petitioners freedom to choose the
means of exercising the right, likelihood of independence of the press being
undermine by having to seek alternative media etc. would be remote and
depend on various factors which may or may not come into picture. Unless
these were the direct and inevitable consequences of the measures enacted in
the impugned Act, it would not be possible to strike down the legislation as
having that effect and operation."12

It appears that the Court wanted the 'direct and inevitable effect' test to
be operated in such way that where the infringement was brought about by the
likely occurrence of some connected social, economic, political or other event

10. Searvai, H.M, Constitutional Law of India at p. 620.

11. A.I.R, 1957, 620, 1957, SCR 860

12. Express Newspapers V. Union of India A.I.R. 1958, S.C. 578 at p. 620.

227
than the one formally Stated in the statue, the effect will not be direct and
inevitable because that event, even if likely to happen, may or may not happen.

This test of 'direct and inevitable effect' was followed in Sakal

Newspaper's Case13. Rejecting the State's plea that drop in the circulation was
only an indirect consequence and that reasonableness of the restriction should
be considered under Article 19(1) (g) and clause (6) and not under Article
19(2), the Supreme Court observed that,

"The fixation of minimum price for the number of pages which a

newspaper is entitled to publish is obviously not for ensuring a reasonable price
to the buyers but for expressly cutting down the circulation. The restraint on the
freedom to publish any number of pages unless the price of a newspaper is
raise along with the curtailment of advertisement, forcing the hike in the price
of newspapers, is no remote but the direct consequence of the impugned order.
The direct and immediate effect of the said order is bringing down the
circulation. And when a law is intended to bring about that result, it is a direct
interference with the freedom of speech and expression.

The aforesaid approach was firmly established in Bank Nationalization

case14 where Shah, J. speaking for the Court said,

"It is not the object of the authority making the law impairing the right
of citizen nor the form of the action taken that determines the protection that he
may claim; it is the effect the law and the action upon the right which attract
the jurisdiction of the Court to grant relief. If this be the true view and we think
it is, in determining the impact of State action upon Constitutional guarantees
which are fundamental, it follows that the extent of protection against
impairment of a fundamental right is determined not by the object of legislature
nor by the form of action, but by its operation upon the individual right".15

13. Sakal Papers V. Union of India A.I.R. 1962, S.C. 305

14. (1970, AIR, 564, 1970, SCR (3) 530)
15. R.C. Cooper V. Union of India A.I.R. 1970, S.C. 564

228
 Thus, Shah J., was delivering judgment on behalf of the ten judges.
This case has rejected the theory of object and form of State action as it is
inconsistent with the Constitutional Scheme.

The Supreme Court's attitude is extreme importance to the press for two
reasons. First: because what the legislature cannot do directly they seek to do it
indirectly; and secondly, the Government often pretends to enact the legislation
for pro-bono public reasons when its real object is to infringe private and
public rights.''16

Freedom of Press Defined.

Freedom of Press can be read under Article 19(1)(a). It is an absence of

statutory and administrative control on dissemination of information, ideas,
knowledge and thoughts. The freedom of the press and expression is guarded
by the First Amendment to the US Constitutionwhich specifically lays down
that. This freedom is to be in no way abridging by the laws. If Indian Leaders
were not aware of the US First Amendment or of Jefferson‟s famous
declaration when he said that “Were it left me to decide whether we should
have a government without newspaper or newspapers without a government, I
should not hesitate a moment to prefer the latter.” Jawahar Lal Nehru echoed
similar views, “I would rather have a completely free press, with all the
dangers involved in the wrong use of that freedom, than a suppressed or
regulated press.” Voltaireonce said, “I do not agree with a word you say but I
defend to death your right to say it.”17 Mrs. Gandhi has never had much faith in
the press. Her misgivings about the press were first expressed in her address to
the International Press Institute Assembly in New Delhi on November 15,
1966, when she blamed the press for giving wide publicity to student unrest in
the country. She said, “How much liberty should the press have in country like
India which is engaged in fighting a war against poverty, backwardness,
superstition and ignorance”.

16. Dhavan, R, Only the Good News On The Law of Press In India at p. 106
17. www.legalservicesindia.com/article/.../freedom-of-press-article-19(1)(a)-1847-1.html

229
 “Mrs. Gandhi would not suggest restrictions that might be imposed on
the press but said that it was for the leading editions, and journalists of the
country to decide. Nine years later Mrs. Gandhi declared emergency, action
was immediatelytaken against the press and complete censorship was imposed.

Kuldip Nayar, a veteran journalist wrote to Mrs. Gandhi when she

imposed the emergency, “If newspaper has criticized the government, it is
largely because of its sluggish administration, slow progress in the economy
field and the gap between promise and performance. My concept of a free press
is to ferret out the truth and let the public know.”

It is essential to preserve the democratic way of life, that people should

have the freedom to express their feelings to make their views known to the
people at large. The press, a powerful media of mass communication, should be
free to play its role in building a strong viable society. Denial of the freedom of
press to citizens would necessarily undermine the power to influence public
opinion. Besides the restrictions imposed on the press by the Constitution, there
exist various other laws which further curtail press freedom and the right of the
citizen to information as well as the right to freedom of speech and expression.
They are all in force in the interest of public order of the sovereignty and
security of the State.18

The origin of the concept of freedom of press took place in the England.
From the earliest times, in the West, persecution for the expression of opinion
even in matter relating to Science or philosophy was resorted to by both the
Church and the State, Such restraints, through licensing and censorship, came
to be accentuated after the invention of printing towards the latter part of the
15th Century, and the appearance of newspaper in the 17th Century, which
demonstrated how powerful the press was as a medium of expression. Shortly
after the emergence, newspaper came to take up the cause of the opposition
against monarchical absolutism, which turns andled to different methods of
suppression. It is theprotest against such governmental interference that

18. http://www.legalservicesindia.com/article/print.php?art_id=1847 2/6

freedom of the press was built up in England. Opposition to governmental
interference, which had been brewing on for some time, was supported by
logical arguments by Milton in his Areopagitica (1644), for instance, that free
men must have the „liberty to know, to utter, and to argue freely according to
conscience in above all liberties‟. Any for of censorship: was intolerable,
whether imposed by a royal decree or by legislation. In fact, Milton‟s
Areopagitica was a protest addressed to the Long Parliament which had taken
up licensing, after the abolition of the Star Chamber. It was as a result of such
agitation that the Licensing Act of 1662 was eventually refused to be renewed
by the House of Commons, in 1694, though the technical reasons given were.
The history of Freedom of Press, in England, is a triumph of the people against
the power of the licensor. Since, there is neither written Constitutionnor any
guarantee of fundamental right in England. The concept of freedom of press
was like the wider concept of freedom of expression, has been basically
negative. In other words, freedom of press, in England, means the right to print
and publish anything which is not prohibited by law or made an offence, such
as sedition, contempt of court, obscenity, defamation and blasphemy19

6.2 Need for Freedom of the Press

„Freedom‟ means absence of control, interference or restrictions. Hence,

the expression „freedom of press‟ means the right to print and publish without
any interference from the State or any public authority. But, as well be seen
presently, this freedom, like other freedoms, cannot be absolute but is subject
to well-known exceptions acknowledge in the public interest, which in India
are enumerated in Art. 19, of the Constitution.

Since, India, „freedom of expression‟, is guaranteed by Art. 19(1)(a) of

the Constitutionand it has been held bySupreme Court20 the freedom of the
„press‟ is included wider guarantee, it is unnecessary to plead for the freedom

19. Freedom of Press Article 19(1)(a)

http://www.legalservicesindia.com/article/print.php?art_id=1847 3/6
20. Express News Paper v. Union of India, 1958, S.C. 578 (614)
of press in this country. Nevertheless, the principles which lie at the
background of freedom of the press and the limitations thereto are relevant to
every legislation relating to press. Since, Constitutionality can be challenged in
India; it would be not only useful but also essential to keep before one‟s mind‟s
eyes the basic and historic principles on which the demand for freedom of press
is founded. This has become particularly important in India, when zeal for
establishing a welfare and socialist State is apt to regulate all individual rights
to the background, for the time being.

The argument in favor of freedom of the press is the same as that for
freedom of speech21 with a stronger appeal arising from the special features of
printed matter, namely-

(a) A printed matter records the ideas in a permanent form, which speech
cannot.

(b) However larger the audience to a speech may be, a newspaper or book
has a lager circulation than spoken words. Even though in modern times,
a newspaper has other rivals in the realm of media of expression, such as
the radio or the television, the monitoring daily has still the widest
demand in the world, and most potent medium of mass
communication.22

What has been said in the U.S.A. is true of all modern democratic countries:

“Newspapers, magazines and other journals of the country…have shed

and continued to shed more light on the public and business affairs of the
nation than any other instrumentality of publicity….”23

(c) As is clear from Art. 19(1) (a) of the Constitution, the press, an
institution,24 has no Constitutional or legal privilege. What is known as

21. Durga Das Basu Commentary on the Constitution of India, 6th Ed, Vol. C, pp. 95-7.
22. Rep. of the Royal Commission on the Press, para. 363.
23. Grosjean v. American press Co. (1935) 297 U.S. 233
24. Sharma v. Srikrishna, A. 1959 S.C. 396 ( Para 13)
 freedom of the press is nothing but the freedom of expression for every
citizen guaranteed by Art. 19 (1) (a) which includes-

i. The right to lie what sentiments he pleased before the public, 25 or

the right to impart information and ideas26.

ii. The right to receive information27 and ideas from others through
any lawful Medium.

(d) historically, the growth and development of representative democracy

(as against absolutism)28 is much intertwined with the growth of the
press that the press has come to be recognized as an institutional limb of
modern democracy. Ideologically, the indispensability of the press for
the proper functioning of democracy is so much embedded in the United
States as it was said by Jefferson.29This was the view which eventually
triumphed in adoption of the first amendment to the American
Constitution, in 1791,30“The congress shall make no law… abridging the
freedom of speech or of the press….”

“Freedom of discussion is essential to enlighten public opinion in

democratic States; it cannot be curtailed without affecting the right of the
public to be informed through sources independent of the Government
concerning matter of public interest.31

A democratic political society or government which rest on the consent

of the people and the contribution of their ideas to public questions can rest on
only the free debate and free exchange of ideas amongst the people. There
cannot be any collective decisions after mature deliberation upon any issue

25. (1765) IV Bl. Com. 152

26. Art 19, Universal Declaration of Human Rights, 1948
27. Cf. Hamdard Dawakhana v. Union of India, (1960),2 S.C.R. 671.
28. Bryee, Modern Democracies, Vol. I pp. 105 et.
29. Jafferson,s letter to Carrington, Jan. 16, 1787.
30. Durga Das Basu, Constitutions of worlds, (2nd Ed.), p. 83.
31. Brij Bhushan v. State of Dehli (1950), S.C.R. 605 (619) Fazal Ali J.
unless there is an opportunity for free exchange of views amongst the
participants, which in representatives assembled in Parliament.

On the one hand, the widest dissemination of information from diverse

sources is necessary for public education.32This is the foundation of democratic
society.Besides, it is by means of a free discussion and criticism that the
government remains responsive to the will of the people and peaceful change is
effected and errors of government are peacefully corrected and eliminated
through the process of popular government.

“A free press stands as one of the great interpreters between the

government and the public. To allow it to be fettered is to fetter ourselves.33

If the democracy means government by the people themselves, whether

directly or through representatives elected on the basis of public issues, the
public must be allowed freedom to discuss public issues and to express their
judgment. Hence, even though as citizens they must abide by orders of public
officers, laws passed by the legislature or judgment pronounced by the courts,
they must, at the same time, remain free, as „the people‟, to criticize the
competence of or orders made by police officers the policies involved in
Legislative measures and the merits of judicial decisions, if they are to govern
themselves.34 The State can punish offences but not participation of the public
in the government of the country, so long as that is done peaceably, and subject
to regulation which isConstitutionally valid.

The basic principle of democracy being that “in government the

deliberative forces shall prevail over the arbitrary”, public discussionbecomes
„political duty‟ and the greatest menace to freedom is an inert people”.35

32. Ramesh Thappar v State of Madras, (1950), S.C.R. 594 (602)

33. Grosjean v American press Co. (1935) 297 U.S. 233.
34. Meiklejohn, in American Government and Politics (Moe & Schultze), pp. 512.
35. Whitney v California, (1927), 274 U.S. 357 (375).
 Representative democracy, the foundation of which, is free election
based on reason, cannot function in a society where there is no freedom of
speech.

Mere freedom of election is not enough if there is no free press to

criticize the program and action of the party in power, and the parties in
opposition are not allowed to present their alternative programs before the
people, on the basis of which they can exercise their choice at the election
effectively. In the word of Madison,

“A popular government, without popular information, or the means of

acquiring it, is but a prologue to a farce or a tragedy or perhaps both… and a
people who mean to be their own governors, must arm themselves with the
power which knowledge gives”.

In other words, an electorate is not free unless informed, and an

informed electorate is dependent upon access to all shades of political opinion,
which, conversely, means an opportunity for all groups (expecting those which
are subversive of the very foundation of the State or of the democracy itself) to
take their massage to the electorate.36

In the ultimate analysis, freedom of the press in a representative

democracy with a party in government means the right of all political parties to
have access to the „mass media‟ so that they may appeal to the electorate on the
basis of their respective programs and ideology.

In short, democracy, government of the people by the peoples

themselves, cannot function unless the people are well informed and free to
participate in public issues by having the widest choice of alternative solution
of the problems that arise. But in the modern world of speed and manifold
engagements, very few amongst the public have the time or leisure to go
through the fountain sources of information. The daily newspaper is practically
only the material which most people read. The people can, therefore, be given

36. Cf. U.S. v C.I.O., (1948), 335 U.S. 106 (143)

the fullest scope for thought and discussion on public issues, if only
newspapers can be allowed representing different points of views, including
those of the opposition without any control from the government to present
only one shade of opinion, or the policy adopted by the government.37

Freedom press in short, forecloses the State from assuming „a

guardianship of the public mind. Authority is to be controlled by public opinion
by authority. 38

In the word of Blackstone “the liberty of the press is indeed essential to

the nature of a free State… the only plausible argument heretofore used for
restraining the just freedom of the press, that it was necessary to prevent the
daily abuse of it” will entirely lose its force, when it is shown … that the press
cannot be abused to any bad purpose without incurring a suitable punishment
where as it never can be used to any good one, when under the control of the
inspector”39

Public criticism is essential to the working of democracy. Subject, of

course, to the power of the State to punish for offenses through the press,
government should not suppress the freedom of a newspaper to publish any
views or comments merely because they are critical of the government. 40

The foregoing propositions arrived by the American Supreme Court

were summarized as follows by our Supreme Court and held to be applicable in
the interpretation of freedom of the press in India. 41As derived from Art 19(1)
(a) of the Constitution:

The freedom of the press rests on the assumption that the widest
possible dissemination of information from diverse and antagonistic sources is
essential to the welfare of the public.

37. Cf. Finer, Theory and practice of Modern Government, p. 266

38. Thomas v Collins, (1944), 323 U.S. 516 (545)
39. (1765), IV Bl. Com. PP. 151-3.
40. Bennett Coleman v. Union of India, A. 1973, S.C. 106. (149)
41. Express Newspaper v. Union of India, (1959), S.C.R. 12 (121, 124) Paras ( 34,36)
 Such freedom is the foundation of free government for the 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 or non-employment

of necessary means of exercising the right. In other words, freedom from
restriction in respect of employment in the editorial force.

6.3 Scope of Freedom to Speech and Expression Available to

Media U/A. 19(1)(a) of Indian Constitution

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.42

“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 Constitutionensures

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 Constitutionand is transformed as fundamental and human right in
Article 19(1) (a) as “freedom of speech and expression.

For achieving the main objects, freedom of the press has been included
as part of freedom of speech and expression which is a universally recognized
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:

42. Arnold v King Emperor, A.I.R, 1914, PC 116, 117.

 “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
Reforms43, in which the Court has observed as follows:
“One 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 Constitutionof 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).
Keeping this view in mind Venkataramiah, J. of the Supreme Court of
India in the Newspapers Indian Express (Bombay) (P) Ltd. v. Union of India
case44 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.”

43. Union of India v. Assn. for Democratic Reforms, (2002),5 S.S.C. 294.
44. Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985), 1 S.S.C. 641
 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. 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.

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.45

“Freedom of press” means absence of interference by the State except in

so far as it is authorized by the Constitutionand by law.

Further Art. 19(3), provides that “the expression of the rights provided
for the paragraph 2 of this article arrives with it special duties and
responsibilities. It may, therefore, be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary for respect of the

45. Freedom of Press Article 19(1)(a)

http://www.legalservicesindia.com/article/print.php?art_id=1847 5/6
rights or reputations of others and for the protection of national security or of
public order or of public health or morals”.

The American Press Commission has said. “Freedom of the press is

essential to political liberty. When men cannot freely convey their thoughts to
one another, nofreedom is secured, where the freedom of expression exists the
beginning of a free society and means forevery retention of library are already
present. Free expression is, therefore, unique liberty.

In Lowell V. Griffin,46 it has been observed that the freedom of press is

not confined to newspapers, and periodicals, but it includes also pamphlets and
circulars and every sort of publication which affords a vehicle of information
and opinion.

Dr. Ambedkar, in the speech ofConstitutional Assembly Debates 47says,

“The press has no special rights which are not to be given or which are not to
be exercised by the citizens in his individual capacity. The editor of a press or
the manager is merely exercising the right of the expression and therefore, no
special mention is necessary of the freedom of the press”.

The Indian press Commission has expressed that “Democracy can

thrive not only under the vigilant eye of its legislature, but also under the care
and guidance of public opinion and the press is per excellence, the vehicle
through which opinion can become articulate.”

In Ramesh Thappar v State of Madras 48, Supreme Court of India

examined the scope and extent of freedom of speech and expression guaranteed
by Art. 19(1) (a) of the Constitution, and it has been Stated that, “ freedom of
speech and of the press lays the foundation of all democratic organization, for
without free political discussion no public education, so essential for the proper
functioning of the process of popular Government is Possible”.

46. (1938), 303 US 444.

47. Vol. II 980.
48. A.I.R. 1950, S.C.124
 Thus, freedom of „speech and expression‟ means the right to express
one‟s own convictions and opinion freely by words of mouth, writing, printing,
and picture or any other mode. It includes the expression of one‟s ideas through
any communicable mediumsuch as gestures or visible representation.

Freedom of press has always been a cherished right in all democratic

countries. The newspapers not only purvey news but also ideas, opinions and
ideologies, besides much else. They are supported to guard public interest by
bringing forth the misdeeds, failing and lapses of the government and other
bodies exercising governing power. Hence, it has been described as the fourth
Estate‟.

There is no specific provision in our Constitutionguaranteeing the

freedom of press. In Brij Bhushan V. State of Delhi, 49 it has been held that the
freedom of speech and expression includes freedom of propagation of ideas
which freedom was ensured by the freedom of circulation and that the liberty
of press consist in allowing no previous restraint upon the publication. It was
further observed that the fundamental freedom of speech and expression
enshrined in our Constitutionwas based on the provisions to the first
Amendment of the Constitutionof USA.

The Supreme Court of India extents the scope of Art. 19 (1) (6) the
Mediaagain in Life Insurance Corporation of India v Manubhai D. Shah 50, that
“the word „freedom of speech and expression must be broadly constructed to
include the freedom to circulate one‟s views by words of mouth or writing or
through audio visual instrumentalities. It, therefore, includes the right to
propagate one‟s view through the print media or through any other
communicable channel e.g. radio, and television. Every citizen of this country,
therefore, has the right to air his or her views trough the printing and or
electronic media subject, of course, to permissible restrictions imposed under
Art. 19 (2) of the Constitution. The print media, radio and tiny screen play the

49. A.I.R. 1950, S.C. 129.

50. (1992), 3 S.C.C. 637.
public education so vital to the growth of a healthy democracy. Freedom to air
one‟s views is lifeline of any democratic institution and any attempt to stifle,
suffocate or gag this right would sound a death knell to democracy and would
usher in autocracy or dictatorship. The modern communicable mediums
advance public interest by informing the public of the events and developments
that have been taken place and thereby educating the voters, a role considered
significant for the vibrant function of democracy.

In Prabhu Dutt V. Union of India, 51the Supreme Court has held that the
right to know news and information regarding administration of the
governments is included in the freedom of press. But this right is not absolute
and restriction can be imposed on it in the interest of society and the individual
from which the press obtain the information. They can obtain from individuals
when he voluntarily agrees to give such information

Scope of grounds for reasonable restrictions on freedom of Media or

Press under Art. 19 (2), the press as such has no special privileges in India. The
fact that the measure of the freedom of the press is the same as that of an
ordinary citizen under Art. 19(1) (a),The press is not immune from the ordinary
form of taxation, the application of the general laws relating to industrial
relations; and the regulation of the conditions of service of the employees.52

Thus, the Constitution of India, Art. 19 (2) provides that “ all citizens
shall have the right to freedom of speech and expressions, 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.

51. A.I.R. 1982 S.C. 6

52. Express Newspapers Ltd. V Union of India, 1986, A.I.R. 872.

242
6.4 Issues (Ambit) Relating to the Freedom of Media

It is now well settled fact that freedom of press in India which includes
in the freedom of speech and expression under Article 19 (1)(a), whereas in
the Indian Constitutionitself State having the power to curtail freedom of media
on various grounds but such imposed restrictions must be reasonable. What is
reasonable, it is to be court decide. So it is necessary to understand what is role
of judiciary to protect freedom of media from direct and indirect attack by State
on freedom of press.

6.4.1 Fixation of Maximum Pages

In Bennet Coleman Co. v. Union of India, 53 the validity of the

Newsprint Control Order1962 which fixed the maximum number of ten pages
of that newspaper could be published and challenged to violation of
fundamental rights whichguaranteed inArt. 19 (1) (a) and Art 14 of the
Constitution. The court has held that the Government can make a fair and
equitable allotment of the available newsprint to the newspapers but once the
allotment are made newspapers must be left free to determine how they will
adjust their newsprint. They must be left free to determine their pages their
circulation and their new editions within the quota allotted them. Freedom is
both in circulation and content. Hence, it has been made clear that the fixation
of maximum number of pages of newspapers by the government is against the
freedom of press guaranteed by art. 19(1) (a).

6.4.2 Fixation of Minimum Price According to Number of Pages

In Sakal Paper Ltd V. Union of India 54, the daily newspapers (price and
page) Order, 1960, which fixed a minimum price and number of pages which a
newspaper was entitled to publish was challenged. Court has made it clear that
the freedom of speech and expression cannot be curtailed in the interest of the
general public. The only restrictions which may be imposed on these rights are

53. A.I.R. 1973, S.C, 106.

54. A.I.R. 1962, S.C, 305

243
those which clause (2) of Article 19 permits. Accordingly the court has held
that section 3(1) of the Newspaper (price and page) Act, 1956,and daily
newspaper (price and Page) order, 1960 made there under were
unconstitutional as being in violation of art. 19(1) (a)

6.4.3 Levy of Duty or Tax on Newspaper Industry

In Indian Newspaper V. Union of India55the petitioner challenged the

imposition of an import duty and the levy of auxiliary duty on the newsprint on
the ground of infringement of the freedom of press as it impose the burden
beyond the capacity of the industry and also affects the circulation of the
newspaper has no immunity from general laws like taxation or labor laws. The
court has rejected the plea that no duty can levied on the Newspaper industry.
The levy of duty or tax on the newspaper industry is subject to review by courts
in the light of the provisions of the Constitution.

6.4.4 Regulation of Condition of Service of Workmen in Newspaper

Industry

In Express Newspaper Ltd V. Union of India 56the validity of regulation

of conditions of service of workmen in Newspaper industry through working
journalists (Constitution of service and miscellaneous provisions) Act, 1955
was challenged. The court has held that the object of the Act was an
amelioration of the conditions of the workmen in the newspaper industry. The
court has made it clear that the press has no an immunity from general laws
like taxation or industrial laws consequently; the court has held that the Act is
valid.

6.4.5. Commercial Advertisement

Advertisement is undoubtedly a form of speech. But every form of

advertisement when it takes the form of commercial advertisement no longer
falls within the concept of freedom of speech for the object of such

55. 1985, 1 S.S.C, 641

56. A.I.R. 1958 S.C, 578

244
advertisement is not the proportion of ideas social, economic and political or
furtherance of literature or human thought. Hence, an advertisement of
commercial nature is not protected under Art. 19(1)(a)

Hamderd Dawakhana V. Union of India 57The validity of the Drugs

and Magic Remedies (Objectionable Advertisements) Act, 1954 was
challenged on the ground that it violates freedom of speech and expression
guaranteed by Art. 19(1)(a).The Act put restrictions on advertisements of drugs
in certain cases and to prohibit the advertisements for certain purpose of
remedies alleged to possess magic qualities. The Supreme Court held that the
advertisement is, no doubt, a form of speech but every advertisement is not a
matter of dealing with the freedom of speech and expression of ideas. The court
held the act as valid. The court has made it clear that commercial advertisement
comes within the freedom of business under Art. 19(1) (a) and does not come
within the freedom of speech and expression granted by Art. 19(1) (a). The
court has held that the advertisement for promotions of business or trade falls
within the freedom of business under Art. 19(1) (g) and not for propagating
ideas, therefore, restrictions thereon can be imposed in the interest of general
public. Advertisement of prohibited drugs would not fall within the Scope of
Art. 19(1) (a).

In Tata Press Ltd. V. Manager Telephone Nigam Ltd 58 case, it has been
held that commercial speech is a part of the freedom of speech and expression
guaranteed by Art. 19(1) (a) and it cannot be denied to protection Art. 19(1) (a)
merely it is issued by the businessman as the public has a right to receive the
commercial speech.

In Hindustan Times V. State of U.P. 59 case, it has been held that

advertisement has direct nexus with circulation and revenue of newspaper and

57. A.I.R. 1960 S.C, 5541

58. A.I.R. 1995,S.C, 2438.

59. A.I.R, 2003 S.C, 250.

245
therefore the government cannot impose an unjust condition in the matter of
release of advertisements.

6.4.6 Pre-Censorship

Censorship of the press is not specifically prohibited by provisions of

the Constitution. Like other restrictions, its Constitutionality has to be judged
by the test of reasonableness within the meaning of Art. 19(2)

Imposition of pre censorship on a journal or newspaper previous to its

publications is a restriction on the freedom of press and will amount to an
infringement of the freedom of speech and expression guaranteed by Art. 19(1)
(a), However, the pre-censorship may be valid if it can be justified on any
ground of reasonable restriction permitted by Art. 19(2). But the imposition
pre-censorship in the emergency circumstances e.g, for the prevention of
breach of peace or communal disturbance will be valid.

In Brij Bhushan V. State of Delhi60 case, the Chief Commissioner of

Delhi, in pursuance of Sec. 7 of the East Punjab Safety Act, 1949, ordered the
printer, publisher, editors of the English weekly called Organizer to submit all
communal matters, news and views other than those derived from official
sources for security before publication till further orders. The printer, publisher
and editor of organizer are approached court. The court struck down the order
observing “…the imposition of pre-censorship of a journal is a restriction on
the liberty of the press which is an essential part of the freedom speech and
expression declared by Art. 19 (1) (a).

In Virendra V. State of Punjab61case, the court has observed that

prohibiting newspaper from publication of its own views or views of
correspondents about the burning topic of the day is a serious encroachment on
the valuable right of freedom of speech and expression. The court held that the
prohibition of the material prejudicial to the maintenance of communal

60. A.I.R. 1950 S.C, 129

61. A.I.R. 1958 S.C, 986

246
harmony during the existing tense communal situation was reasonable and
valid. However, the court also held that the restriction must specify them
arterials not to be printed, the reasons and duration for which the restriction
would be in force and there must be provision for representation to the
government against the order imposing such restriction. If it is left to the
absolute discretion of the executive authority it must be held to be
unreasonable.

In Express Newspapers V. Union of India 62 the Supreme Court held that

a law which imposes pre-censorship or curtail the circulation or prevents from
being started or require the government to seek government aid in order to
survive was violation of Art. 19(1)(a).

In Babulal V. State of Maharashtra63it has been held that it would follow

the provision for pre-censorship for limited period in emergency circumstances
and subject to procedural safeguards e.g. as in section 144 of the Cr.p.c. is
valid.

6.4.7 Press Freedom and Circulation

It has been held that freedom of speech and expression also include
freedom of propagation of ideas or views which is ensured by the freedom of
circulation. Such a matter came to be discussed in the famous case of Ramesh
Thappar V. State of Madras64popularly known as the crossroad case. In this
case, a ban was imposed upon the entry and circulation of the petitioner‟s
weekly journal „crossroad‟, printed and published in Bombay, by the provincial
Government, in exercise of its power under section 9(1-A) the Madras
Maintenance of Public Order Act, 1949. TheSupreme Court heldthat view in
Art. 19 (1)(a). It includes freedom to propagate ideas, circulation is the lifeline
of this freedom and to ban entry of newspaper or stop its circulation is to cut

62. A.I.R. 1958 S.C, 5781

63. A.I.R, 1961 S.C, 884

64. (2007), 1 S.C.C. 143

247
the lifeline of the expression guaranteed by Art. 19(1) (a) it can be done on any
ground under 19(2) but on no other ground.

6.4.8 Press Freedom and Pre- Stoppage of Publication

In Virendra V. State of Punjab65it was held that banning of publication

in any newspaper of any matter relating to a particular subject or a class of
subjects would be obnoxious to the right of free speech. The court was of the
opinion that “if a newspaper is prevented from publishing its own view or the
view of its correspondent”, it is certainly a serious encroachment on the
valuable and cherished right to freedom of speech.”

Similarly, in R. Rajgopal V. State of Tamil Nadu 66the Supreme Court

was of the opinion that the right to propagate his ideas guaranteed in Art. 19(1)
(a) extended not merely to the matter which he was entitled to circulate but also
to the volume of circulation.

Similarly, in Bennett Coleman and co. Union of India 67the Supreme

Court held that the newspapers should be left free to determine their pages and
their circulation.

6.4.9 Press Freedom and Direct Attack on Press

In Express Newspaper (Pvt.) Ltd V. Union of India 68 the petitioner

challenged the Constitutional validity of a notice of re-entry upon forfeiture of
lease and of threatened demolition of the express building. In this case, the
petitioner allotted, under the agreement of lease, plots of land for construction
of its press building. The Lt. Governor of Delhi alleged that the new express
building was constructed in contravention of Municipal Corporation Laws
served a notice for re-entry and for its demolition. Declaring that from the
material available in this case was it sufficient to hold that the impugned
notices suffered from arbitrariness and non-application of mind, the Supreme

65. A.I.R, 1957 S.C, 896

66. A.I.R, 1965 S.C, 264
67. A.I.R, 1973, S.C. 106
68. A.I.R, 1986, S.C. 515

248
Court held those to be invalid. The court held the view that “notice of re-entry
upon the forfeiture of lease and of the threatened demolition of the express
building were intended and meant to silent the voice of Indian Express which
constituted a direct and immediate threat to the freedom of the press and
therefore, violation of Art. 19(1)(a)read with Art. 14 of the Constitution.

6.4.10 . Freedom of Press and Right to Information.

Right to information or the right to know is essentially a fundamental

right and is inherent in freedom of speech and expression as contained in Art.
19 (1)(a). This has been held by Supreme Court in People‟s Union for Civil
Liberties V. Union of India.69, No democratic government can survive without
accountability and the basic postulate of accountability is that the people
should have information about the functioning of the Government. As it has
been rightly said that exposure to public gaze and scrutiny is one of the surest
means of achieving a clean and healthy administration.

In State of Utter Pradesh V. Raj Narayan 70,the Supreme Court held the
view that “the right to know which is derived from the concept of freedom
speech, though not absolute. Is a factor which should make one worry when
secrecy is claimed for transactions which can in any role have no repercussion
on public security?”

In State of Uttar Pradesh V. Raj Narain71 the Supreme Court held that
the view that “ the right to know which is derived from the concept of freedom
of speech, though not absolute, is a factor which should make one worry when
secrecy is claimed for transactions which can in any role have no repercussion
on public security.” Similarly, in S.P. Gupta V. Union of India 72, it was held
that “right to know, receive and import information has been recognized within
the right to freedom of speech and expression. A citizen has fundamental right

69. A.I.R, 2004, S.C. 1442

70. (1975), 4 S.S.C. 428
71. (1975), 4 S.C.C. 306
72. A.I.R, 1982 S.C,149

249
to use the best means of imparting and receiving information and as such to
have an access to telecasting for the purpose.”

In Dinesh Trivedi V. Union of India73the Supreme Court has held that all
the citizens of India has right to know about the affairs of the Government. This
right is implicit in Art. 19(1)(a) further it was observed by the court that it is
essential to ensure the continued participation of the people in the democratic
process that they are kept informed of the vital decisions taken by the
Government aimed at their welfare and basis thereof. Democracy expects
openness and it is a concomitant of a free society.

In Prabha Dutt V. Union of India74, Superintendent of the Tihar Jail was

directed by the Supreme Court to allow the representatives of a few newspapers
to interview two death sentence convicts under Art. 19(1)(a) However, the
Supreme Court allowed this with an observation that the right under Art.19 (1)
(a) “is not an absolute right, nor indeed does it confer any right on the Press to
have an unrestricted access to means of information.

6.4.11 Press Freedom and the Sources of the Information.

A few years back a question arose whether the media persons should
reveal the sources of any news or information published by them. The press
Council Act, 1978 provides that a journalist cannot be compelled to disclose
the sources of any news or information published by the newspaper. But Justice
P.B. Sawat, former chairman, Press Council of India, favored the disclosure of
sources and maintained that a court can compel a journalist to disclose the
source, if necessary.

In Nishi PremV. Javed Akhtar75, the Bombay high court, in answer to

interrogatories regarding the sources of information at an interim stage said that
“it was settled practice in England that the press could not be compelled to
disclose the sources of information at an interim stage in an action for libel and

73. (1997) 4 S.S.C. 306

74. (1982) 1 S.C.C.1
75. A.I.R, 1988, Bom; 222

250
slander and this rule which is known as the „newspaper rule‟ should be applied
in India too”.

In re Harijai Singh and Vijay kumar76, the court has ruled that the
freedom of the press was not absolute and unfettered and that it was subjected
to reasonable restriction. In this case the editor of the Tribune and Panjab
Kesari faced contempt of court and wile tendering their apology; they revealed
the source of item they published. While accepting their apology, the court laid
down that the journalist and publisher had greater responsibility towards the
society to safeguard public order, decency and morality. It may, therefore, be
understood that if justice demands Scribe may be compelled to reveal the
sources of their news the press, though, one of the pillars of democratic society,
should exercise its role, with the fullest sense of responsibility.

6.4.12 Press Freedom and Trial by Media

When the matter is sub-judice, trial by media is not permissible as held

by the Apex Court. The Supreme Court in a recent case namely Sidhartha
Vashist v. State (NCT) of Delhi 77, reiterating their earlier observations,
cautioned that Art. 19(1) (a) did not permit the media interfering in the
administration of justice in matter sub-judice. Recognizing the significance of
both the print and electronic media in the present day, the Supreme Court
pointed out to the danger of serious risk of prejudice of the media exercising
unrestricted freedom in holding the suspect or the accused guilty even before
such an order passed by the court. The court maintained that trial by media not
only hampered fair. investigation but also amounted to travesty of justice.

A few years ago, the Supreme Court in State of Maharashtra v. Rajendra

J. Gandhi78, also took a similar view. In this case, unnecessarily publicity and
the taking out of processions by the public caused great harm to girl who was
victim of rape which resulted in the transfer of case of Kotapur to Satara by

76. (1996), 6 S.S.C. 466

77. A.I.R, 2010 S.C. 2352
78. (1997), 8 S.S.C, 386.

251
virtue of the order of the Supreme Court. Discussing, on the freedoms
guaranteed by the Constitution, the Supreme Court cautioned that there is a
procedure established by the law governing criminal trials. A trial by media or
by public agitation is the very antithesis of the rule of the law. It can well lead
to miscarriage of justice. A judge has to guard himself against any such
pressures.

6.4.13 Rights of Voters and Freedom of Media

The voter has got a major role in the election process which is
considered to be an important aspect of democracy. Therefore, being part of the
electoral process, the voter has got every right to know the details about the
person who he chooses to represent him. This right has been recognized by the
Supreme Court in Union of India V. Association for Democratic Reforms 79,
where the court observed that „the right to get information in democracy is
recognized all throughout it is a natural right flowing from the concept of
democracy.‟ In this case, Supreme Court, explained that a democratic
government is a continued participative operation and that “a successful
democracy posits an aware citizenry” and ruled that voters „right to know the
antecedents including criminal past of his candidate contesting election was
fundamental and basic for survival of democracy.

Supreme Court in that case further held that “democracy cannot survive
without free and fair elections as well as without free and fairly informed
voters”. And that „the voter had the right to get material information, with
respect to candidates. Contesting election for a post, which was of an utmost
importance in a democracy,‟ as implied in the freedom of speech guaranteed by
Art. 19(1) (a).

Thus, holding that views, the Supreme Court issued directions requiring
the Election Commission to call for information on affidavit by issuing
necessary order in the exercise of its power under Art, 324, of the

79. A.I.R, 2002 S.C, 2112.

252
Constitution80, from each candidates seeking election to Parliament or a State
Legislature as a necessary part of his nomination paper furnishing therein
information regarding his assets, educational qualifications and criminal past as
well as present criminal record.81

Following the judgment of Supreme Court, the representation of people

Act, 1951 was amended82 and this amended provision was later challenged in
the Supreme Court In Peoples Union for Civil Liberties V. Union of India 83,
contending that the changes introduced were not in accordance with what had
been declared by the apex court in Union of India V. Association for
Democratic Reforms84sec. 33-B of the impugned Act was inserted by the apex
court, no candidate would be required to disclose or furnished under the
impugned Act. However, adopting a balance approach, the Supreme Court held
that the right to information provided for in the impugned Act was reasonably
adequate to safeguard the right to information vested in the voter. Further, the
court maintained that the right of the voter to know the bio-data of a candidate
was the foundation of democracy, a facet of the freedom of speech and
expression.

6.4.14 Reporting Courts Proceeding and Freedom of Media.

It is an established fact that the press enjoys more freedom than the
general public and they also have got an onerous duty towards the public to
report for their benefit. But when it comes to reporting the court proceedings,
the media persons certainly are placed in privilege position as compared to

80. Art 324 of the Constitution vests power of superintendence, direction and control of election of
the Election Commission.
81. The Law Commission of India, in its 170th Report submitted in 1999 had made recommendation
in regard to furnishing of like information by the candidate and debarring him from contesting
anelection if charges had been framed against him by court of law. Further, the Vohara
Committee constituted by the Government of India also expressed concern on the criminalization
of politics.
82. By the Representation of People (3rd Amendment) Act,
2002 83. A.I.R, 2003, S.C. 2363
84. A.I.R, 2002,S.C.2112

253
ordinary citizens. So it is the responsibility of the media to report the matters of
public importance.

Lord Donaldson, in Attorney General V. Guardian Newspaper Ltd. 85,has

put it beautifully: “it is not because of any special wisdom, interest or status
enjoyed by proprietors and editors, or journalists, it is because the media are
the eyes and ears of the general public. Their right to know and their right to
publish is neither more nor less than that of general public indeed it is that of
the general public for whom they are trustees.”

A few year back, the Bombay high Court maintained that “the
journalists has a fundamental right to attend proceeding in court and the right to
publish a faithful report of the proceedings witnessed and heard in court. This
right is available in respect of judicial and qusi-judicial tribunals.”

Thus, it is clear that the media reporter should report the matters decided
in the courts in the interest of pubic most faithfully. Publicity of court
proceeding also keeps a judge more vigil and attentive. As it has been rightly
said “publicity of proceeding serves important purpose. It enhances public
knowledge and appreciation of the working of the law and the administration of
justice. There is also a therapeutic value to the public in seeing criminal trials
reach their logical conclusion.86

However, a question arises whether this publicity of proceeding by the

media is absolute or not. Open justice system certainly is good but it must give
way when considerations are high. Particularly when sensitive issues are
related, it is essential to maintain some restraints in the interest of justice. The
identity and details of the parties should not be discussed publically and in this
case the court may impose the restrictions or prohibits the media people not to
publicize the issues or matters in the particular case. In Naresh Shridhar
Mirajkar V. State of Maharashtra87, the Supreme Court held that the court may

85. (1988), 3 All E.R. 595

86. Katar Singh V. State of Punjab, (1994) 3 S.C.C. 569 at p. 684.
87. A.I.R, 1967 S.C. 1.

254
restrict the publicity of proceedings in the interest of justice. The court has the
inherent power under sec. 151 of the Civil Procedure Code 1908 to order trial
to be held in camera. But, this power must be exercise with great caution and
only where, the court is satisfied beyond doubt that, the ends of justice would
be defeated if the case was to be tried in open court.

It is also fact that the court should exercise extra care in such case, the
press and the media people are also expected to impose self-restraint while
preceding such issues. Recently, taking into consideration the importance and
nature of the case, the Supreme Court asked the media people to be cautious
and more vigilant while reporting important cases.

6.4.15 Right to Publish Legislative Proceedings

The citizens also have a right to know the discussions which are being
held in legislature. The debates and deliberations held in the State Legislative
Assemblies as well as in the Parliament are related to the public and hence it is
their interest that these debates and deliberations should be made available to
them. It is the media, both print and electronic, plays a major role in informing
the public and making them aware of the topics of discussion. However, the
reporting of Legislative proceeding are controlled and regulated by the
Legislative privilege available to the members of both the Parliament and the
Legislative Assemblies Art. 105 and 194 of the Constitutionof India refer to
immunities and privileges guaranteed to the Members of Parliament and the
State Legislative Assemblies respectively. Thus, Legislative privilege refers to
special rights conferred by the Constitutionon Parliament and the State
Legislature to ensure freedom of speech for legislatures, to enable them to
discuss and debate matters of importance without the fear of inviting liability of
any sort. Art. 361 (A) of the Constitutionalso provides for the protection of the
publication of Legislative proceedings.

Thus, so long as the publication is without any malice, there is no

liability in respect of the publication of a substantially true report of
Parliamentary proceeding or those of the State Legislative Assemblies.
6.5 Constitutional Limitations on the Freedom of Press in India

It may be recalled here that „freedom of speech and expression‟ is one

of the six basic fundamental freedom guaranteed to the citizens of our country.
Although freedom of press is not specifically mentioned anywhere in the
Constitutionit is inherent in the freedom of speech and expression provided
under Art. 19(1) (a) of the Constitution. This press derives its rights from the
right to freedom of speech and expression available to a citizen and it has the
same right. Although special provision was made to safeguard the rights of the
press, the courts stated from time to time through various decisions conformed
that the rights of the press are implicit in the guarantee of freedom of speech
and expression as provided in the Constitution.

i) Freedoms are not absolute

The freedom guaranteed under Art 19 (1) (a). Are considered and
recognized as natural rights or common law rights these rights are clearly
distinguished from the rights which are created by a statue. However, these
natural rights are not absolute or uncontrolled. The Constitution,in clear term,
puts some restriction on the enjoyment of these rights. Clause (2) to (6) of the
Art. 19enumerates the restrictions which are imposed on the exercise of the
fundamental freedoms and these restrictions can be imposed by laws made or
to be made by the State. Where a right has been created by a statute, it can be
taken away by the Legislature and can be subjected to such restrictions only as
are permitted by the Constitutionitself. That is why, the Constitution,
empowering the State to directly impose restrictions or limitations upon the
fundamental freedoms.
Thus, clause (2) to (6) of the Art. 19 mentions the grounds and purpose
for which reasonable restriction on the rights guaranteed can be imposed. It is
an important to mention here that theConstitutionincorporates in itself
restrictions to be imposed whereas the American courts have to apply the
„doctrine of police power‟ for upholding the restrictions on the Bill of Rights88.
„Police Power‟ is power to regulate persons and property for the safety, health
and welfare of society. „Police Power‟ has also been described as the
governmental power of self-protection which permits reasonable regulation on
rights and property in particular, essential to the preservation of the community
from injury. Further, police power has also been defined to mean “the legal
capacity of sovereignty or one of its governmental agents to delimit the
personal liberty of persons for the protection of those social interests which
reasonably need protection.89 IndianConstitution, making a departure from the
American provisions, made the restrictions to be imposed by State
throughConstitutionby incorporating in Art. 19 itself.
The restriction upon the enjoyment of fundamental freedom may be
imposed by any of the authorities who are included in the definition of „State”
in Art. 12, of the Constitution.It is clear that restrictions referred to in clauses
(2) to (6) can be imposed only by a law and any subordinate legislation. The
executive cannot impose any restriction upon any of the fundamental freedoms
without Legislative authority. However, only to impose a restriction, a law
should not be enacted, it may be done by a general legislation provided it
fulfills the condition required. Any such law putting a restriction must be a
valid law and should be within the Legislative competence not in contravention
of other provisions of the Constitution.90
ii. Test for Restrictions to be imposed.
Provisions contained in clauses (2) to (6) of Art. 19, which enable the
State to impose restrictions on the enjoyment of freedomguaranteedunder
Art.19 (1) must satisfy the following three broad tests91:
Restriction can only be imposed by or under the authority of a law duly
enacted by the appropriate legislature, competent to enact a law. No restriction

88 . The First Ten Amendments of the Federal Constitution are known as the Bill of Rights.
89. Shukala. V.N. “The Constitution Of India “ fourth Edition, 1964 at P 120.
90. Basu D.D. Shorter Constitution of India, Twelfth Edition, 1999 at p. 103.
91. Ramlila Maidan Inciedent, In Re, (2012),5 S.C.C. 1.
can be imposed by executive action alone without the authority of a law to back
it up.
The restriction must be imposed “in the interest of “or “for the particular
purpose” mentioned in the clause permitting the imposition of the restriction on
that particular freedom, i.e. there must be a reasonable nexus between the
restriction imposed and object enshrined in the respective clause. No restriction
can be imposed on the freedoms, on the grounds other than those specified in
the respective clauses.
The Restriction to be Imposed Must be Reasonable
As early as 1952, State of Madras V. V.G. Row, 92 the Supreme Court
has held the view that “….it is important in this context to bear in mind that of
reasonableness, whenever prescribed, should be applied to each individual
statute impugned, and no abstract standard or general pattern of reasonableness
can be laid down as applicable to all cases.”
Thus, it is cleared that the restriction can be imposed only by or under
the authority of law and it cannot be imposed by exercise of executive power.
Each restriction must be reasonable and restriction must be related to the
purpose mentioned in Art. 19(2).
iii) Reasonableness of Restrictions.
It is an important to note the expression “Reasonable Restriction” has
nowhere been defined by the Constitution. As mentioned above, the test
reasonableness has to be applied to each individual Statute impugned and no
abstract standard or general pattern of reasonableness can be laid down as
applicable to all case. It will vary from case to case with regard to changing
values of human life, social philosophy of the Constitution, prevailing
conditions and the surrounding circumstances. Therefore, it is up to the court to
determine the reasonableness of the restrictions enlisted in the Constitution.
Further, for adjudging the reasonableness of restriction, factors such as
the duration and extent of the restriction, the circumstances under which and

92. A.I.R. 1952,S.C, 196.

the manner in which that imposition has been authorized, the nature of right
infringed, the underlining purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, amongst others, enter into the
judicial verdict.93

The question before the court, thus, is whether the restriction imposed
was reasonable and whether the purpose of the same squarely fell within the
relevant clauses. Taking into consideration all these, the Supreme Court on
various occasion has spelt out certain principles and guidelines for determining
the reasonableness of restrictions. Thus, in Papnasam Labour Union V. Madura
coats Ltd,94the Supreme Court has laid down the following guidelines for
determining what constitutes „reasonable restriction‟

The determination by the legislature of what constitutes a reasonable

restriction is not final or conclusive; it is subject to the supervision of the
court.95

The expression „reasonable restriction‟ in Art. 19, Connotes that the

limitation imposed on a person in the enjoyment of his right must not be
arbitrary or of an excessive nature, so as to go beyond the requirement of felt
need of the society and object sought to be achieved.96

There must be a direct and proximate nexus or a reasonable connection

between the restriction imposed and the object sought to be achieved.97

The reasonableness of the restriction has to be determined in an

objective manner and from the standpoint of view of the persons upon whom
the restrictions are imposed or upon abstract considerations.98

93. Ramlila Maidan Indcedent, In Re, (2012) 5 S.S.C. 1 at p. 36.

94. A.I.R, 1955,S.C, 2200
95. Chintamanrao V. State of U.P. A.I.R, 1951,S.C, 118.
96. Ibid.
97. M.R.F. Ltd. V. Inspector, Kerala Government, (1998), 8 S.S.C. 227
98. Hanif Qureshi V. State of Bihar, A.I.R. 1958,S.C, 731
 Restriction must be reasonable from both substantive as well as
procedural standpoint.99

A restriction which is imposed for securing the objective laid down in

the Directive Principles may be regarded as a reasonable restriction.100

If the examine the above mentioned guidelines prescribed by the

Supreme Court or examined, one thing is clear that the court enjoys a wide
discretion in determining reasonableness of a restriction imposed under Art. 19
of the Constitution. Thus, “a restriction imposed in any form has to be
reasonable and to extent, it must stand the Scrutiny of judicial review.

Whenever and wherever any restriction is imposed upon the right to

freedom of speech and expression, it must be within the framework prescribed
by Art. 19(2) of the Constitution.

iv) Grounds of Restriction on Freedom of Speech and Expression

Thus, in clear term the Art. 19(2) set the grounds under which restriction
can be imposed on the enjoyment of free speech and expression.

The grounds of restriction provided in the Constitutionare:

1. Sovereignty and Integrity of India

In the interest of sovereignty and integrity of India restriction can be

imposed on the freedom of speech and expression. This ground has been added
as a ground of restriction on the freedom of expression through Sixteenth
Amendment101.Therefore, sovereignty and integrity of India as a separate
ground was inserted in Art. 19(2) of the Constitutionenabling the Parliament to
make a law so as to prevent any person from propagating recession of a State
or any part of India from the union or to prevent all activities aimed at
disintegration of the country. The expression „in the interest of‟ indicates that
the restriction on freedom of speech and expression may be imposed not only

99. Papnasamma Labor Union V. Madras Coast Ltd. A.I.R,1995,S.C, 2200

100. State of Bombay V. F.N. Balsara, A.I.R, 1951,S.C, 318
101. The Constitution(Sixteenth Amendment) Act, 1963
when it actually leads to disintegration of the country but also when it has
tendency to cause disintegration of the country. This expression also indicates
that the restriction imposed must have reasonable connection with the
sovereignty or integrity of India.

2. Security of the State

In the interest of the security of the State, reasonable restriction can also
be imposed on the enjoyment of freedom of speech and expression. The
security of the State may be endangered by crimes of violence intended to
overthrow the government. In Ramesh Thappar V. State of
Madras,102distinguishing security of State from public disorder, the Supreme
Court said that every disorder cannot be regarded as threatening the security of
the State. The term security of States refers only to serious and aggravated
forms of public disorder, e.g. insurrection, rebellion; waging war against the
State and not the minor breaches of public order tranquility such as unlawful
assembly, riot, affray etc.

In State of Bihar V. Shaibala Devi,103the Supreme Court held the view

that “speech and expressions on the part of an individual which incite or
encourage the commission of violent crimes such as murder and the security of
the State fall under Art. 19 (2) of the Constitution. The expression „in the
interest of‟, indicates that the restriction on freedom of speech and expression
may be imposed not only when it causes serious public disorder but also when
it has tendency to cause such effect.

3. Friendly Relations with Foreign States

In the interest of friendly relation with foreign States, restriction may

also be imposed on the freedom of speech and expression. This ground has
been added as a ground of restriction by the Constitution(first Amendment)

102. A.I.R, 1950,S.C,124

103. A.I.R. 1952 S.C, 329
Act, 1951. The main object of having such a ground as restriction on freedom
of speech and expression is to be prohibiting the malicious propaganda against
a foreign country having friendly relation with India. Art. 367 (3) of the
Constitutionrefers to the meaning of a „foreign State‟ means any State
other than India provided that subject to the provisions of any law made by
Parliament, the President may by order declare any State not to be a foreign
State for such purposes as may be specified in the order.”

In Jagan Nath V. Union of India,104 the Court held that a Commonwealth

country is a „foreign country‟ for the purposes of Art. 19(2).

4. Public Order

The concept of public order includes every ordinary breach of public

order like riot, affray but the concept „security of State‟ refers only to serious
and aggravated forms of public disorder like overthrowing the State or waging
war against the State etc.

Public order is something more than ordinary maintenance of law and

order. „Public Order‟ is synonymous with „public peace, safety and tranquility‟.
Public order implies absence of violence and an ordinary state of affairs in
which citizens can peacefully pursue their normal avocation of life.

The restriction on freedom of speech and expression are based on the

ground of public order which was added by the Constitution (First
Amendment) Act, 1951 to meet the situation from the decision of the Supreme
Court in Romesh Thapper V. State of Madras, 105the court struck down a law
banning the entry of a journal in the State of Madras in the Interest of public
order because Art. 19 (2) did not contain the expression „public order‟. To
meet the situation arising from this decision the expression „public order‟ was
inserted in Art. 19(2), of the Constitution.

104. A.I.R, 1960 S.C, 124

105. A.I.R. 1950 S.C,124

262
5. Decency or Morality

The word decency and morality are words of wide meaning. The word
„indecency is identical with the word „obscenity‟ of English law. The test
of obscenity is „whether the tendency of matter charged obscene is to deprave
and corrupt those whose minds are open to such immoral influence and into
whose hands a publication of this sort is likely to fall. In R V. Hicklin, 106it has
been laid down that a publication is obscene if it tends to produce lascivious
thoughts and arouses lustful desire in the minds of substantial numbers of that
public into whose hands the book is likely to fall.

Sections 292 to 294 of IPC provide instances of restrictions of freedom

of speech and expression in the interest of decency or morality. But it does not
lay down any test for determining the obscenity. In Ranjit Udeshi V. State of
Maharashtra,107the Supreme Court followed the test laid down in English case
and held the novel „Lady Chaterley‟s Lover‟ was an obscene book as it had the
tendency to corrupt the minds of those who read it.

6. Contempt of Court

Restriction on the freedom of speech and expression can be imposed if it

amounts to contempt of court.

Sec. 2 of the Contempt of court Act, 1971, defines the term contempt of
court, that “contempt of court may be either „civil contempt‟ or decree,
direction, order, writ, or other means willful disobedience to any judgment,
undertaking given to a court. „Criminal contempt‟ means the publication
(whether by words spoken or written or by signs or by visible representations
or otherwise) or any matter or the doing of any other act whatsoever, which
scandalize or tend to scandalize or lower or tends to lower the authority of any
court; Prejudices or interfere with the due course of any judicial proceedings,

106. LR, 3 QB, 360

107. A.I.R. 1965,S.C. 881

263
interferes or tends to interfere with, or obstructs or tends to obstructs, the
administration of justice in any other manner.”

However, the following acts are not contempt of court.

 Innocent publication and distribution of any matter.

 Publication of fair and accurate report of judicial proceedings.
 Fair criticism of judicial act.
 Complaint against the presiding officers made in good faith.
 Publication of fair. information relating to proceeding in camera.

Art. 125 and 215 of the Constitutionauthorizes the Supreme Court and
the high court‟s respectively to punish for their contempt. In C.K. Daphtari V.
O.P. Gupta108, the Supreme Court ruled that a law relating to contempt imposes
reasonable restriction on the right guaranteed by Article 19(1)(a)

In Arundhati Roy, In Re109, the Supreme Court has held that

maintenance of dignity of court is cardinal principle of the rule of law. The
criticism which undermines the dignity of the court cannot permit under clock
of freedom of speech and expression.

7. Defamation

A Statement which injures a man‟s reputation amounts to defamation.

Defamation consists in exposing a man to hatred, ridicule, or contempt. The
laws made by State to impose reasonable restriction on freedom of speech and
expression in relation to defamation are protected under Art. 19(2).No person
can so exercise his freedom of speech and expression as to injure the reputation
of another person. In Printers Mysore V. Assistant Commercial Law officer, 110
it has been held that the press is not immune from the general law of liability
for defamation.

108. A.I.R, 1971 S.C. 1132

109. A.I.R, 2002 S.C, 1375

110. (1994) 2 S.S.C,434

264
 Sec. 499 and 500 of IPC define defamation which means exposing a
man to hatred, contempt or ridicule. These sections are Constitutional as they
impose reasonable restrictions on the freedom of speech and expression. The
laws penalizing the defamation are reasonable restriction on the freedom of
speech and expression, therefore, protected under Art. 19 (2) of the
Constitution.

8. Incitement to an Offence

The ground of incitement to commit an offence as a restriction on the

freedom of speech and expression was added by the Constitution(First
Amendment Act, 1951.) the right to freedom of speech and expression does not
give permission to citizens to incite a person to commit an offence. The word
„offence‟ has not been defined in the Constitution. According to the General
Clause Act, 1897 the word „offence‟ means any act or omission made
punishable by laws. Thus, a person cannot be allowed to instigate another
person to do an act made punishable by law. What constitute incitement will,
however, have to be determined by the court with reference to the facts and
circumstances of each case.

In Kedar Nath V. State of Bihar111, it has been held that mere instigation
not to pay tax may not necessarily amount to incitement to an offence.

6.6. Summary

For regulating electronic media, thenumber of laws have been framed

from time to time. Earlier laws relating to wireless and radio broadcasting, in
pre-independence era, were India Telegraph Act, 1933 and Indian Wireless
Telegraphy Act, 1933. In 1950, Constitutionof India was enforced and under
Article 19(1) (a) i.e. fundamental right to freedom of speech and expression
was conferred along with reasonable restrictions under Article 19(2). Media
was impliedly conferred this right by various judicial interpretations. This

111. A.I.R, 1962 S.C, S.C, 955.

265
fundamental right of media includes right to circulate information, right to
receive information, right to criticize, right to conduct interviews, right to
report court proceedings and Legislative proceedings, right to advertise
(commercial speech) and right to broadcast.

The term 'reasonable restriction' under Article 19(2) was interpreted by

the Supreme Court in A.K. Gopalan v. State of Madras 112 and Narottamdas v.
State of M.P.113Following eight reasonable restrictions of thefreedom to media
are, “in the interest of Sovereignty and Integrity of India, the Security of the
State, Friendly relations with Foreign States, Public Order, Decency or
Morality, Contempt of Court, Defamation and Incitement to an offence”. The
leading Judgments of the Supreme Court interpreting reasonable restrictions
includes Brij Bhushan case, Express Newspaper case, Sakal paper‟scase,
Bennett Coleman case, Ranjit D. Udeshi Case, Hicklin's case, Raj Kapoor's
case, Rajendra Sail's case, D.C. Saxena's case and Cassidy v. Daily Mirror
Newspaper Ltd's case.

In K.A. Abbas v. Union of India114, the Supreme Court held that the pre-
censorship of films is justified under Article 19(2) on the ground that the films
have to be treated differently from other forms of art and expression because of
its instant effect on persons who watch, particularly on adolescents.

In 'Bandit Queen' case115 the Supreme Court observed that film that
illustrates the consequences of a social evil necessarily must show that social
evil. The guidelines in the Cinematograph Act must be interpreted in that light.
No film that extols the social evil or encourages it, is permissible but a film that
carrier the message that the social evil is an evil, cannot be made impermissible
on the ground, that it depicts the social evil. At the same time, depiction must
be just, sufficient for the best, left to the sensibilities of the expert tribunal.

112. A.I.R, 1950, 27, SCR 1950, 88

113. A.I.R. 1969,S.C. 1667
114. A.I.R. 1971,S.C. 481
115. Bobby Art International v. Om Pal Singh, A.I.R, 1996,S.C. 1846.

266
 At last, it can be concluded that, The Freedom of the Press is nowhere
mentioned in the Indian Constitution. The Right to Freedom of Speech and
Expression is provided in Article 19 of the Indian Constitution. It is believed
that Freedom of Speech and Expression in Article 19 of the Indian
Constitutioninclude freedom of the press. Freedom of expression enables one
to express one‟s own voices as well asthose of others. But freedom of the press
must be subject to those restrictions which apply to the freedom of speech and
expression. The status of freedom of the press is the same as that of an ordinary
citizen. The press cannot claim any immunity from taxation, is subject to the
same laws regulating industrial relations, and press employees are subject to
the same laws regulating industrial employment.