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Freedom Of Press In India 2010
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Freedom Of Press In India 2010
Acknowledgement
We have tried to cover all the aspects of the project & every
care has been taken to make the project faultless. We have tried to
write the project in our words as far as possible and simplified all
the concepts by presenting it in a different form.
THANKING YOU
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Freedom Of Press In India 2010
Contents
1. FREEDOM OF PRESS IN INDIA: ‘AN OVERVIEW’ ...................................................... 5
i. INTRODUCTION ........................................................................................... 5
i. SUGGESTIONS ................................................................................................ 32
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INTRODUCTION
In Tamil Nadu
where six journalists were
sentenced to 15 days simple
imprisonment for alleged
breach of privilege and
contempt by the state
Legislative Assembly brings
back the not so pleasant
memories of the Emergency.
There is a saying that those
who forget history are wont
to repeat it. The action was
condemnable as the intent of
those who passed the
judgment is itself, questionable.
The threat to freedom of the press in this country or for that matter in all of Asia
hangs like the proverbial sword of Damocles. In India, no political party can boast
of respecting the freedom of the press. There have been numerous instances of
newspaper offices being vandalized and editors and journalists being roughed up
by political flunkeys for publishing articles that were critical of their leaders whose
credentials were suspect, to say the least. This sorry state of affairs has increased
in recent years.
question. Even after more than Six decades of Independence, democracy in India
has still not matured and the quality of public life is declining alarmingly.
Today, political leaders are voted to power because of their oratory and
manipulative skills and not for their wisdom and virtue. We cannot expect better
governance if we continue to elect people with criminal track records and ill
intentions. Fortunately, the Indian citizen can depend on a strong judiciary, which
has so often come to the rescue.
The press, on its part, should bear in mind that freedom of the press
does not mean a license to write anything. This freedom is precious and it has to
be used judiciously. When this freedom is misused, public respect for this
profession will diminish. The press has to guard against this.
Indian press has a long and chequered history spreading over the last
two hundred years. There were a series of enactment, ever since the East India
Company directed against the press. Unlike the first amendment of the U.S.
Constitution, Article 19(I) (a) speaks of freedom of speech and expression and
does not specially mention freedom of press. Dr. B.R. Ambedkar stressed that the
freedom of expression includes freedom of the press. He said the press is merely
another way of stating an individual or a citizen.1
In the Express Newspapers Case4 justice N.H. Bhagwati said that the
fundamental right to freedom of speech and expression enshrined in our
constitution is based on the provisions in First Amendment of the constitution of
the United States….and it would, therefore, be legitimate and proper to refer to
those decisions of the Supreme Court of the United States of America…He, in fact
reviewed the important American decisions and applied those principles in
interpreting Article 19(I) (a) 5.
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In Indian Express Newspapers Pvt. Ltd. vs. Union of India6, Justice E.S.
Venkataramiah said that Freedom of Press must be considered as a “basic
structure” of the constitution.
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Democracy can flourish only where its citizens enjoy full freedom of
speech and expression subject only to reasonable restrictions. Hence due to this
anxiety only the press council of India was born in 1954. But if, we look to the
historical background of the Media law, we will find that, it was as early as in 1799
that first time, Lord Wellesley promulgated the “Press Regulations”, which had
the effect of imposing pre-censorship on an infant newspaper publishing industry.
Thereafter, in 1835 the “Press Act” was passed. Then in 1857 the government
passed the ‘Gagging Act’, which among various other things, introduced
compulsory licensing for the owning or running of printing presses; empowered
the government to prohibit the publication or circulation of any newspaper, book
or other printed material and banned the publication or dissemination of
statements or news stories which had a tendency to cause a furor against the
government, thereby weakening its authority. The process continued, but the
constitution makers brought the most significant change, by inserting Article 19
(1) (a) in the part III, as fundamental right of the constitution. This speaks about
the freedom to express & expression. This only led to the formation of Press
Council of India. Although, the Indian Constitution does not expressly mention the
liberty of the press, it is evident that the liberty of the press is included in the
freedom of speech and expression under Article 19(1) (a). Keeping this in mind
Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India11 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.”
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For achieving the main objects, freedom of the press has been
included as part of freedom of speech and expression which is a universally
recognised 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:
But the Supreme Court of India has held that there is no specific
provision ensuring freedom of the press separately. The freedom of the press is
regarded as a “species of which freedom of expression is a genus”. Therefore,
press cannot be subjected to any special restrictions which could not be imposed
on any private citizen, and cannot claim any privilege (unless conferred
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specifically by law), as such, as distinct from those of any other citizen. Freedom
of the press has three essential elements. They are:
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The Indian Constitution provides for this freedom in Article 19(1) (a)
which guarantees right to freedom of speech and expression. It has been held
that this right to freedom also includes press freedom. It is an implied or deduced
right. [The economic and business aspects of the press are regulated under Article
19(1) (g) which provides for freedom of profession, occupation, trade or business
which is restricted by Article 19(6) which includes provisions for public interest,
professional and technical qualifications and state nationalization- total or partial.
guarantee of the above right would not affect the operation of any existing law in
so far as it is related to, or prevent the state from making any law relating to libel,
slander, defamation, contempt of court or any matter which offended against
decency or morality or which undermined the security of or which tended to
overthrow the state.
“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 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.”
Although Article 19 (1) (a) is limited by the above clause the courts
have adopted a liberal view while deciding questions pertaining to press freedom
of constitutional validity of an impugned statute. The superior courts discharged
the role of sentinel on the qui vive.
The Supreme Court has emphasized the great value of the freedom
of press in democratic society. Thus from the start the judiciary has vindicated the
stand taken in the Constituent Assembly. In Romesh Thapper v State of Madras16
the Supreme Court struck down as violating Article 19(1) (a), the Madras
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Maintenance of Public Order Act 1949, whose section 9[1A] sought to impose
restrictions on the freedom of press not against undermining the security of the
state or its overthrow but for the wider purpose of securing public safety or
maintenance of public order; as in the opinion of the Court the law fell outside
the scope of Article 19(2). The Court laid down the following rule that so long as
the possibility of a law being applied for purposes not sanctioned by the
Constitution cannot be ruled out; it must be held to be wholly unconstitutional
and void since it is not severable.
The Court also struck down in Brij Bhushan vs. State of Delhi17 which
was essentially on the same lines , the East Punjab Public Safety Act1949 which,
through its section 7 (1) (o) , provided for special measures to ensure public safety
and the maintenance of public order.
In re the
Bharati Press the validity
of section 4 (1) (a) of the
Press [Emergency Powers]
Act 1931 was in question.
The section which dealt
with incitement to an
offence was held to be
worded in general terms
and was declared ultra
vires (beyond the legal
capacity of a person,
company, or other legal
entity) by the Patna High
Court as it could have
been applied to both
‘aggravated forms of
offences like political
assassination and as also to ordinary murders or cognizable offence involving
violence.’ Hence Constitution *First Amendment] Act, 1951 was passed to include
the grounds of public order and incitement to an offence to meet the situation
which arose from Supreme Court’s decision in Romesh Thappar’s case.18
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Brij Bhushan vs. State of Delhi19 also dealt with the question of
validity of censorship. It was held that such censorship on a journal previous to its
publication would amount to infringement of Article19 (1) (a). The Supreme Court
held in the Auto Shankar case that the government has no authority in law to
impose a prior restraint upon publication of defamatory material against its
officials.20 The Court also observed that to propagate ones ideas every citizen has
a right to publish, disseminate and circulate them to reach any class and any
number of readers subject of course to the limitations permissible under a law
competent under Article19(2).21 Freedom of press is also both qualitative and
quantitative.22 The view of the Courts regarding press freedom can be summed up
as follows:
Freedom of press
or rather the lack of it as an
issue has gained importance
in the last 2- 3 years. Some of
the recent incidents which
have brought the issue to the
forefront are as follows:
Spearheading the
list is the Tehelka episode
where the news portal was
forced to shut down
completely following the
continued harassment of its
*Tehelka.com’s+ journalists for
having exposed the ‘scam’ in
the defense department
involving ex defense
Personnel’s and central government ministers.
Another issue which created a lot of hue and cry over press freedom
was the threat to expel Alex Perry of the TIME magazine which questioned Prime
Minister Vajpayee’s physical fitness to lead the country. Journalists working in
Gujarat and Kashmir have also been susceptible to frequent attacks for reporting
on the political scene there.
But the latest controversy which has brought the perennial problem24
of protection of freedom of speech and press from arbitrary exercise of the power
of punishing for contempt possessed by the legislature, back in to limelight, is the
action of the Tamil Nadu Legislative Assembly, of punishing the editors and
journalists of The Hindu for publishing reports of speeches in the Assembly and
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for editorial comments on its action of referring those reports to its privilege
committee.
The root and justification for the existence of the power of the
Parliamentary Privilege given by our Constitution lies in the ancient privilege given
to English House of Commons in 1689. But these powers of the house which have
been referred to as “insult laws”25 have been condemned and scrapped in most of
the nations. The powers of commitment to prison which were described in
England as the keystone of Parliamentary Privilege are no longer in use. The Joint
Parliamentary Committee recommended in1999 that Parliament’s power to
imprison persons, whether members or not who are in contempt of Parliament
should be abolished.
The result is that this uncertain situation will continue, until the
Supreme Court launches into the area and clarifies its previous decisions which
are conflicting and legislators come forward to codify the privileges. Meanwhile
the power of Parliamentary privilege can be subjected to judicial scrutiny [judicial
review] as every authority or power should be exercised within the constitutional
limits.
As Chief Justice (ret.) P.N. Bhagwati had put it “Every organ of the
government, be it executive, legislature or the judiciary, derives its authority from
the Constitution and it has to act within the limits of its authority. No one,
howsoever highly placed, and no authority, howsoever lofty can claim that it shall
be the sole judge of the extent of its power under the Constitution.”
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A
permanent
solution is
necessary as
despite the
Courts’ earlier
decisions matter
has been raised
again and again.
The seriousness
of the matter also
calls for an urgent
need for
codification of
Parliamentary
Privilege as there
is no other
alternative. The
legislators’
reluctance to
codify has been
attributed to the
reason that it
would mean
limiting their powers; as the Court has made it quite clear that if the Parliament or
a State Legislative enacted a law under Articles 105(3) or 194(3) respectively to
define its privileges then such a law would be subject to Article 19(1) (a) and a
competent Court could strike down that law under Article 13 of the Constitution if
it violated or abridged any of the fundamental rights.
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It may be asked:
Would this be enough to ensure
that the Press is left genuinely
free to carry out the functions
that it must perform? Would it
not be necessary to think of
some other, more positive,
steps to ensure that the press
does not remain a hand-made
of only the powerful in the
country?
The inadequacies of the Indian Press need not be connived at. There
is no doubt that private business- and those who control it- are treated by most
newspapers with kid gloves. This is partly because of the ownership of many
newspapers and therefore the philosophy of those who are appointed to senior
journalistic positions. The trade union side of industrial disputes, the approach of
the political parties on the left side of the political spectrum and the difficulties of
the unprivileged and the dispossessed have received far less attention than other
smaller but influential sections and vested interests in the vast bulk of our
newspapers. It should, however, be said that the situation is changing for the
better. Competitions, and also the increasing influence of professional journalists,
are making it difficult for newspapers to ignore these various aspects. It is well
known that the bindings at Bhagalpur, the treatment of workers as bonded
servants by many landed interests, the exploitation of child labour in slate
factories, or of female labour in BIDI factories or even of adult workers in asbestos
factories have been brought to light not by small newspapers but by large ones
which are many times dubbed by critics as belonging to the Monopoly or the Jute
Press category. This tendency shows that to the extent that at least some degree
of competition can be ensured in every circulation area chances are that there
would be a fair degree of investigation of different types of events28.
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With some exceptions, there has also not been enough effort
to develop interest in news, other information and comments on aspects of life
other than politics, crime and sports. Investigative news collection can be of great
use in matters like the operation of Plan programmes and projects. In some
newspapers, useful reports of investigations in sectors like power and irrigation
have recently appeared. But this is still experimental and confined only to a few
papers. Such inadequacies can be overcome only with better training, more
competition and greater professionalization. There are no short-cut remedies for
this.30
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Grounds contained in Article 19(2) show that they are all concerned
with the national interest or in the interest of the society. The first set of grounds
i.e. the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States and public order are all grounds referable to national
interest, whereas, the second set of grounds i.e. decency, morality, contempt of
court, defamation and incitement to an offence are all concerned with the
interest of the society.
“If men, including judges and journalists, were angels, there would
be no problem of contempt of court. Angelic judges would be undisturbed by
extraneous influences and angelic journalists would not seek to influence them.
The power to punish for contempt, as a means of safeguarding judges in deciding
on behalf of the community as impartially as is given to the lot of men to decide, is
not a privilege accorded to judges. The power to punish for contempt of court is a
safeguard not for judges as persons but for the function which they exercise.”
In Rajendra Sail v. M.P. High Court Bar Assn. the editor, printer and
publisher and a reporter of a newspaper, along with the petitioner who was a
labour union activist, were summarily punished and sent to suffer a six months’
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imprisonment by the High Court. Their fault was that on the basis of a report filed
by a trainee correspondent, they published disparaging remarks against the
judges of a High Court made by a union activist at a rally of workers. The remarks
were to the effect that the decision given by the High Court was “rubbish” and “fit
to be thrown into a dustbin”. In appeal the Supreme Court upheld the contempt
against them, but modified and reduced the sentence.
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It should not be forgotten that the press has a duty to show that it
serves public interest at large. It is also the essential duty of press to strike that
proper balance between citizens’s right to privacy and public’s right to
information vis-à-vis the role of media i.e. the press. The press should show their
functional accountability.
Thus we can say the judiciary and media bodies seem to on the same
wavelength. Both want the press free from governmental interference, neither
are opposed to regulations but both are averse to restrictions on freedom of
press. What is required is a consultation with these market players and the public,
keeping the primary objective of informing the public in mind and the formulation
of a viable policy.
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Suggestions
In democracy, the Government cannot function unless the people are well
informed and free to participate in public issues by having the widest choice of
alternative solutions of the problems that arise. Articles and news are published
in the press from time to time to expose the weaknesses of the governments. The
daily newspaper and the daily news on electronic media are practically the only
material which most people read and watch. The people can, therefore, be given
the full scope for thought and discussion on public matter, if only the newspapers
and electronic media are freely allowed to represent different points of views,
including those of the opposition, without any control from the Government. The
following suggestions are offered in this connection:
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END NOTES
5. The principles are: freedom of the press rests on the assumption that the
widest possible dissemination of information from diverse and the
antagonistic sources is essential to the welfare of the public; such freedom
is the foundation of free government of a 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
and non-employment of the necessary means of exercising this right or in
other words, freedom from restriction in respect of employment in the
editorial force. It is interesting to note that the Supreme Court had warned
against the application of American cases in Travancore- Cochin vs. Bombay
Co. Ltd, A1952 INDLAW SC 88; State of Bombay vs. R. M. D.
Chamarbaugwala, 1957 INDLAW SC 153; Bhagwati’s opinion in Express
Newspapers case was overruled by the supreme court in Santokh Singh vs.
Delhi Administrator, 1973 INDLAW SC 82.
6. 1984 INDLAW SC 1
7. Indian Press Commission Report, (1954) p. 339.
8. AIR 1994 S.C. 23 See Times of India, February 12, 1994.
9. Royal Commission on the Press, final report (1977), pp. 8-9, ‘Dimensions of
press freedom’, Indian Press, Vol. V No. 12, December 1978 pp. 9-12.
10.Smt. Prabha Dutt vs. Union of India, 1981 INDLAW SC 75
11.1984 INDLAW SC 1
12.www.law.cornell.edu/constitution/constitution.overview.html
13.Ibid.
14.Vide Author’s Commentary on the Constitution, 6th Ed,Vol C, pg 95-97;
Indian Express Newspapers (Bombay) Private Limited vs. Union of India
1984 INDLAW SC 1
15.In Re : Harijai Singh and Another In Re : Vijay Kumar 1996 INDLAW SC 2426
16.1950 INDLAW SC 9
17.1950 INDLAW SC 8
18.Ibid.
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19.Ibid.
20.R. Rajagopal Alias R. R. Gopal vs. State of Tamil Nadu 1994 INDLAW SC 832
21.Sakal Papers Private Limited vs. Union of India 1961 INDLAW SC 429
22.Bennett Coleman and Co vs. Union of India 1972 INDLAW SC 337
23.Indian Express Newspapers vs. Union of India 1984 INDLAW SC 1
24.http://www.thehindu.com/2003/11/14/stories/2003111401331000.html
25.as has been described by Mr. Johann .P. Fritz, Director of International
Press Institute
26.Pandit M. S. M. Sharma vs. Shri Sri Krishna Sinha 1958 INDLAW SC 135
27.1964 INDLAW SC 447
28.http://www.deccanherald.com/deccanherald/oct05/da1.aspf
29.http://www.pucl.org/from-archives/Media/freedom-press.htm
30.Ibid.
31.http://www.hindustantimes.com/news/printedition/011002/detFRO02.sht
mlf
32.http://www.deccanherald.com/deccanherald/oct05/da1.asp
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WORKS CITED
1. http://www.projectsmonitor.com/detailnews.asp?newsid=7175
2. www.worldpressfreedomday.org/
3. http://www.nowpublic.com/life/free-press-important-bbc-poll-shows-0
4. http://en.wikipedia.org/wiki/Freedom_of_the_press#India
5. http://en.wikipedia.org/wiki/Freedom_of_the_press_in_the_United_States
6. http://www.rsf.org/index.php?page=rubrique&id_rubrique=2
7. http://en.wikipedia.org/wiki/Press_Freedom_Index
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