Professional Documents
Culture Documents
Thanking you
I hereby declare that the project work entitled “Press and Media Law Project on
Article 19 (1)(a) and Freedom of the press” is the outcome of my efforts under
the guidance of Dr. Atul Kumar Tiwari sir. The project was submitted to Dr
Ram Manohar Lohiya National Law University to partially fulfil the B.A.LLB
3rd semester 2023.
I also declare that this project report has not been previously submitted to any
other university.
Date-15/10/2023
Place- Lucknow
Index
1. Introduction
3. Reasonable restrictions
This one line sums up for me, the whole essence of democratic behaviour. Speech is God's gift to
mankind. Through speech a human being conveys his thoughts, sentiments and feelings to others.
Freedom of speech and expression is thus a natural right, which a human being acquires on birth.
It is, therefore, a basic right. "Everyone has the right to freedom of opinion and expression; the
right includes freedom to hold opinions without interference and to seek and receive and impart
information and ideas through any media and regardless of frontiers" proclaims the Universal
Declaration of Human Rights (1948). The people of India declared in the Preamble of the
Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of
thought and expression. This resolve is reflected in Article 19(1)(a) which is one of the Articles
found in Part III of the Constitution, which enumerates the Fundamental Rights. Similar laws
exist in other democracies.
Man as rational being desires to do many things, but in a civil society his desires have to be
controlled, regulated and reconciled with the exercise of similar desires by other individuals. The
guarantee of each of the above right is, therefore, restricted by the Constitution in the larger
interest of the community. The right to freedom of speech and expression is therefore subject to
limitations imposed under Article 19(2) by the First Amendment to the Constitution in 1951
which attempted to strengthen state regulation over the freedom of speech and expression by
expanding the scope of Article 19(2).
[(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the state from making any law, in so far as such law imposes reasonable restrictions on
the exercise of the rights conferred by the said sub clause in the interests of [the sovereignty and
integrity of India,] the security of the State, friendly relations with foreign states, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence.]
Meaning and Scope
Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech
and expression. Freedom of Speech and expression means the right to express one's own
convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode.
It thus includes the expression of one's idea through any communicable medium or visible
representation, such as gesture, signs, and the like. This expression connotes also publication and
thus the freedom of press is included in this category. Free propagation of ideas is the necessary
objective and this may be done on the platform or through the press. This propagation of ideas is
secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty
of publication. Indeed, without circulation the publication would be of little value. The freedom
of speech and expression includes liberty to propagate not one's views only. It also includes the
right to propagate or publish the views of other people; otherwise this freedom would not include
the freedom of press.
In sum, the fundamental principle involved here is the people's right to know. Freedom of speech
and expression should, therefore, receive generous support from all those who believe in the
participation of people in the administration. It is on account of this special interest which society
has in the freedom of speech and expression that the approach of the Government should be more
cautious while levying taxes on matters of concerning newspaper industry than while levying
taxes on other matters.
Explaining the scope of freedom of speech and expression Supreme Court has said that the words
"freedom of speech and expression" must be broadly constructed to include the freedom to
circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. It
therefore includes the right to propagate one's views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this country therefore
has the right to air his or their views through the printing and or the electronic media subject of
course to permissible restrictions imposed under Article 19(2) of the Constitution.
Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle,
suffocate or gag this right would sound a death knell to democracy and would help usher in
autocracy or dictatorship. The modern communication mediums advance public interest by
informing the public of the events and development that have taken place and thereby educating
the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in
any setup more so in a democratic setup like ours, dissemination of news and views for popular
consumption is a must and any attempt to deny the same must be frowned upon unless it falls
within the mischief of Article 19(2) of the Constitution.
The various communication channels are great purveyors of news and views and make
considerable impact on the minds of readers and viewers and our known to mould public opinion
on vitals issues of national importance. The freedom of speech and expression includes freedom
of circulation and propagation of ideas and therefore the right extends to the citizen to use the
media to answer the criticism levelled against the views propagated by him. Every free citizen
has undoubted right to lay what sentiments he pleases. This freedom must, however, be exercised
with circumspection and care must be taken not to trench on the rights of other citizens or to
jeopardise public interest
1. Sovereignty and Integrity of India – This ground has been by the Constitution
(Sixteenth Amendment) Act, 1963. The present amendment is made to guard against the
freedom of speech and expression being used to assail the territorial integrity and
sovereignty of the Union. Thus, it will be legitimate for the Parliament under this clause
to restrict the right of free speech if it preaches secession of any part of the territory of
India from the Union. However, what has to be kept in mind is that teh restriction is with
respect to the territorial integrity of the Union of India and not with respect to the
territorial integrity of the constituent states.3
2. Security of the state – The security of the state may well be endangered by the crimes of
violence intended to overthrow the government, waging of war and rebellion against the
1 Romesh Thappar v. State of Madras, AIR 1950 SC 124
government, external aggression or war, etc. Serious or aggravated forms of public
disorder are within the expression “security of state”. Every public disorder cannot be
regarded as threatening the security of the state. In Romesh Thapar case4 the Supreme
Court pointed out that the expression does not refer to ordinary breaches of public order
which do not involve any danger to the state itself.
Incitement to commit violent crimes like murder would endanger the security of the state.
Thus, in State of Bihar v. Shailabala Devi5, the law which made the signs, words or visual
representations which caused the incitement of violence fall squarely within Article 19(2).
After the amendment of the Constitution in 1951 “public order” was added as a ground
for restrictive laws.
3. Friendly relations with foreign states – This ground was added by the Constitution
(First Amendment) Act of 1951. The State can impose reasonable restrictions on the
freedom of speech in the interest of friendly relations with foreign states. The justification
is obvious: unrestrained malicious propaganda against a friendly foreign state may
jeopardise the maintenance of good relations between India and that state.
2
Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133; Bijoe Emmanuel v. State of Kerela,
(1986)3 SCC 615
3
4
Article 3 of the Constitution : Formation of new states and alteration of areas, boundaries or
names of existing states – Parliament may by law –
(a) Form a new state by separation of territory from any state or by uniting two or more states or parts of
states or by uniting any territory to any part of any state;
(b) Increase the area of any state;
(c) Diminish the area of any state; (d) Alter the boundaries of any state; (e) Alter the name of any state.
5
Romesh Thappar v. State of Madras, AIR 1950 SC 124. 5 AIR 1952 SC 329.
4. Public Order – The preservation of public order is one of the grounds for imposing
restrictions on the freedom of speech and expression. This ground did not occur in the
Constitution as framed in 1950 but was added later by the First (Amendment) Act,
1951. The expression “public order” is synonymous with public peace, safety and
tranquillity.2 It signifies the absence of disorder involving breaches of local significance
in contradistinction to national upheavals such as revolution, civil strife or war, affecting
the security of the state.
It may be noticed that clause (2) uses the words “in the interests of public order” and not
“for the maintenance of public order”. A law may not be designed to directly maintain
law and order yet it may be enacted in the “interests of public order”. Also, not only such
utterances as are directly intended to incite disorder, but also those that have the tendency
to lead to disorder fall within the expression.3 Thus, a law punishing utterances made with
deliberate intention to hurt the religious feelings of any class is valid, because it imposes
a restriction on the right to free speech in the interest of public order, since such speech or
Lover written by D.H. Lawrence. The Magistrate held that the book was obscene and
sentenced the appellant. The court held that it had the right to restrict the freedom on the
grounds of decency and morality.
6. Contempt of Court – The constitutional right to freedom of speech does not prevent the
courts from punishing for their contempt spoken or printed words or any other expression
calculated to have that effect. 6 The expression “contempt of court” is now defined in
Section 2 of the Contempt of Courts Act, 1971 as under:
a) “contempt of court” means civil contempt or criminal contempt;
b) “civil contempt” means wilful disobedience to any judgement, decree, direction,
order, writ or any other process of a court or wilful breach of an undertaking given to
a court;
c) “criminal contempt” means the publication (whether by words spoken or written, or
by signs, or by visible representations, or otherwise) of any matter or the doing of any
other act whatsoever which
i) Scandalizes or tends to scandalize or lowers or tends to lower the authority of
any court
ii) Prejudices, or interferes or tends to interfere with the due course of any
judicial proceedings
8. Incitement to an offence – This is also a ground added in 1951. The freedom of speech
and expression cannot be used as a licence to incite people to commit an offence. During
the debate in the parliament for the inclusion of this clause it was argued that the phrase
“incitement to violence” should be used instead as the word “offence” has a very wide
meaning and can include any act which is punishable under the Indian Penal Code or any
other law. However, this suggestion was rejected. In State of Bihar v. Shailabala Devi 7 the
supreme court held that incitement to murder or any other violent crime would generally
endanger the security of the state; hence a restriction against such incitement would be
valid law under Article 19(2).
Sedition: Sedition embraces all those practices that, whether by word, deed or action are
calculated to disturb the peace and tranquillity of the State and lead innocent people to
subvert the government8. Incitement to violence and public disorder is the gist of the
offence. However, criticism of the existing government or system and expression of a
desire for a different system altogether is not prohibited.9
(1) Article 19 of the Constitution being confined to citizens, foreigners cannot claim any right
thereunder15.
(2) A corporation cannot claim citizenship10, and cannot therefore claim any right 11 under
article 19, as it stands at present
(3) This is so even though the corporation is a company whose shareholders are citizens of
India.12
Chronologically, the first important case to be noticed on the point at issue is of 1957. The
Supreme Court had, in that case15, hinted at the difficulty that may arise out of the fact that a non
citizen running a newspaper is not entitled to the fundamental right of freedom of speech and
expression and therefore cannot claim the benefit of liberty of the press16.
Thereafter, there are two decisions of the Supreme Court reported in 1964, relevant to the subject.
The first was a ruling of a bench of nine judges which by majority held that the provisions of the
Citizenship Act were conclusive on the question that a corporation or a company could not be a
citizen of India17. In the second case of 1964, it was unanimously decided by a bench of five
judges of the Supreme Court that Article 19 guaranteed the rights in question only to citizens as
such, and that an association such as a company could not claim these rights on the basis that they
were an aggregation of citizens.
In 1970, the Supreme Court24 held that the jurisdiction of the court to grant relief cannot be denied
when the rights of the individual shareholder are impaired by State action, if the state action
impairs the rights of a company as well. The test for determining whether the shareholders rights
are impaired is not formal; it is essentially qualitative; if the State action impairs the rights of the
shareholders as well of the company, the court will not, concentrating merely on the technical
operation of the action deny itself jurisdiction to grant relief.
However, it should be pointed that Shah, J. in the above decision18, definitely said that the
Supreme Court rulings of 1964 had no relevance to the question at issue. The petitioner had
sought to challenge an infringement of his own rights and not an infringement of rights of the
bank.
In 1973, the majority of the Supreme Court19 held that although a company is not a citizen, the
citizen shareholders can enforce their rights of free speech as the company is only a medium of
for expression of their views.
Freedom of Press
The constitution of India does not specifically mention the freedom of press. Freedom of press is
implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions
that are provided under the Article 19(2) of the Constitution. Before Independence, there was no
constitutional or statutory provision to protect the freedom of press. As observed by the Privy
Council in Channing Arnold v. King Emperor20: “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”. The Preamble of the Indian Constitution ensures to all its citizens the liberty of
expression. Freedom of the press has been included as part of freedom of speech and expression
under the Article 19 of the
UDHR. The heart of the Article 19 says: “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.”
In Romesh Thapar v. State of Madras21, Patanjali Shastri, CJ observed: “Freedom of speech and
of the press lay at the foundation of all democratic organisations, for without free political
The Supreme Court observed in Union of India v. Assn. for Democratic Reforms22: “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 Indian Express v. Union of India30, it has been held that the press plays a very significant role
in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate
all laws and administrative actions that abridge that freedom. Freedom of press has three essential
elements. They are:
In India, the press has not been able to exercise its freedom to express the popular views. In
Sakal Papers Ltd. v. Union of India31, the Daily Newspapers (Price and Page) Order, 1960,
which fixed the number of pages and size which a newspaper could publish at a price was
held to be violative of freedom of press and not a reasonable restriction under the Article
19(2). Similarly, in Bennett Coleman and Co. v. Union of India24, the validity of the
Newsprint Control Order, which fixed the maximum number of pages, was struck down by
the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable
restriction under Article 19(2). The Court struck down the plea of the
In Romesh Thapar v. State of Madras25, entry and circulation of the English journal
“Cross Road”, printed and published in Bombay, was banned by the Government of Madras.
The same was held to be violative of the freedom of speech and expression, as “without
liberty of circulation, publication would be of little value”. In Prabha Dutt v. Union of
India34, the Supreme Court directed the Superintendent of Tihar Jail to allow representatives
of a few newspapers to interview
Ranga and Billa, the death sentence convicts, as they wanted to be interviewed.
Press Council, which is a correcting mechanism and is in existence in many countries, has been
successfully discharging its duties for a long time now and never has one heard of “censorship”
against it in any country. In many countries, the same or separate bodies act as correcting
mechanisms for print and electronic media. Secondly, our Press Council, which at present has
jurisdiction only over the print media, is admittedly an independent body and entertains
complaints from the media, even against the government. Thirdly, most of the Press Councils
have most of their members representing the media. Fourthly, the Press Councils entertain
complaints against the media for violation of professional ethics and the law of the land, which
are both pre-known. Lastly, the Press Council Act of India has been enacted to preserve and
protect press and journalists' independence. For this reason, during the 1975 Emergency,, the
Press Council Act was suspended by the then government. The present resistance in our country
Trial by Media
The Law Commission, in its 200th report, Trial by Media: Free Speech versus Fair Trial under
Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has recommended a law
to debar the media from reporting anything prejudicial to the rights of the accused in criminal
cases, from the time of arrest to investigation and trial.
The commission has said, "Today there is feeling that given the extensive use of the television
and cable services, the whole pattern of publication of news has changed and several such
publications are likely to have a prejudicial impact on the suspects, accused, witnesses and even
judges and in general on the administration of justice".
This is criminal contempt of court, according to the commission; if the Act's provisions impose
reasonable restrictions on freedom of speech, such conditions would be valid. It has suggested an
amendment to Section 3(2) of the Contempt of Courts Act. Under the present provision such
publications would come within the definition of contempt only after the chargesheet is filed in a
criminal case. In contrast, it should be invoked from the time of arrest.
Another controversial recommendation, it has suggested that the high court be empowered to
direct a print or electronic medium to postpone publication or telecast about a criminal case. On
November 3, 2006, former chief justice of India Y K Sabharwal expressed concern over the
recent trend of the media conducting 'trial' of cases before courts pronounce judgments and
cautioned: "If this continues, there can't be any conviction. Judges are confused because the
media has already given a verdict". According to law an accused is presumed to be innocent till
proven guilty in a court of law and is entitled to a fair trial. So, it is legitimate to demand that
nobody be allowed to prejudge or prejudice one's case?
In the U.S., the O.J. Simpson case attracted a lot of pre-trial publicity. Some persons even
demonstrated in judges' robes outside the court and lampooned Etoo, the trial judge. Yet, Simpson
was acquitted. The judge was not prejudiced by media campaigns or public opinion.
The Supreme Court has ruled in many cases that freedom of the press is a fundamental right
covered by the right to freedom of expression under Article 19 of the Constitution. However the
right to fair trial has not explicitly been made a fundamental right. That does not mean that it is a
less critical right. More than a legal right, it is the basic principle of natural justice that everyone
gets a fair trial and an opportunity to defend themselves.
The N.H.R.C., in its special leave petition filed before the Supreme Court against the acquittal of
the accused in the Best Bakery case, contended that the concept of a fair trial is a constitutional
imperative recognised in Articles 14, 19, 21, 22 and 39-A as well as by the CrPC. If there is a
clash between the rights of freedom of expression and fair trial, which should prevail? Contempt
of court is indeed a ground for restricting the freedom of speech. Still, the media has not tried to
lower the dignity of the judiciary by exposing loopholes of the investigation and the prosecution.
If judicial decisions also appear to be arbitrary, they must be subjected to ruthless scrutiny. It will
be dangerous to gag the press in the name of contempt of court. If the appellate court feels that
the media publicity affected fair trial, it can always reverse the decision of the lower court.
The Supreme Court's pronouncement in the Rajendra Sail case, though given in the context of
criminal contempt, provides the proper guideline: "For rule of law and orderly society, a free
press and independent judiciary are both indispensable".
Conclusion
From the above it can be easily concluded that right to freedom of speech and expression is one
of the most important fundamental rights. It includes circulating one's views by words or in
writing or through audiovisual instrumentalities, through advertisements and through any other
communication channel. It also comprises of right to information, freedom of press etc. Thus this
fundamental right has a vast scope.
From the above case law analysis it is evident that the Court has always placed a broad
interpretation on the value and content of Article 19(1)(a), making it subjective only to the
restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or suffocate
this freedom have always been firmly repelled, more so when public authorities have betrayed
autocratic tendencies.
It can also be comprehended that public order holds a lot of significance as a ground of restriction
on this fundamental right. But there should be reasonable and proper nexus or relationship
between the restriction and achievement of public order. The words 'in the interest of public order'
include not only utterances as are directly intended to lead to disorder but also those that have the
tendency to lead to disorder.
Bibliography
• www.practicallawyer.com
• www.legalservicesindia.com
• www.indiankanoon.com