Freedom of Press Andconstitution of India

CHAPTER 1
FREEDOM OF PRESS
ANDCONSTITUTION OF INDIA
Chapter-1 Freedom of Press and Constitution of India
CHAPTER 1
FREEDOM OF PRESS AND CONSTITUTION OF INDIA
1.1Prologue
Freedom of speech is the bulwark of the democratic government and it is essential for the
proper functioning of the democratic process. The freedom of speech and expression is
regarded as the first condition of liberty. It occupies a preferred position in the hierarchy
of liberties giving succor and protection to all other liberties. It has been truly said that it
is the mother of all other liberties.1
The primary function of the press is to disseminate objective information on all
aspects related to social, economic and political spheres of life. In order to achieve the
main objects, the press has also been provided that same freedom which is guaranteed
under the “right of freedom of speech and expression”. In is not only our country which
has recognized press freedom but it has universally been recognized through
international instruments or various Conventions. General Assembly of United Nations
Organisation universally recognized this right on 10th December, 1948. The essence of
the declaration is contained under Article 192 of “Universal Declaration Human Rights.”
Freedom of the press is not expressly provided in Indian Constitution or in any
other legal instrument but it is implicit or implied in the freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution of 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). Article 19(1)(a) corresponds to the First
Amendment of the United States Constitution which says, congress shall make no law
abridging the freedom of speech or of the press.3
Freedom refers to the state of liberty, or right and privileged to speak and act
according to one‟s own will. Press and media (print, electronic and online) are the most
important medium of expressing opinion of the people in a democratic country that
1
M P Jain, Indian Constitutional Law 986 (2008).
2
Universal Declaration of Human Rights, 1948,Artilce 19 reads: “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.”
3
M.P. Jain, Indian Constitutional Law 986 (2008).
15
justifies one‟s individual right to speech and expression, a coveted right enshrined in the
Indian constitution and in the constitution of other countries on the globe.
Press generally refers to the newspaper industry. In modern world, besides
newspaper, there are various forms of news-media such as television and radio
broadcasting, online news websites and blogs, etc.
1.2. Jurisprudential Concept of Freedom

The essence of freedom is being free from all restraints; ability of making choice out of
free will without being influenced by views of the majority. Freedom has been defined as
the „condition of being free from restraints and having capacity to exercise free will.4
Issaih Berlin highlights the essence of liberty:
“The essence of liberty always lain in the ability to choose as you wish to chose,
you wish so to choose, un-coerced, un-bullied, not swallowed up in some vast system;
and in the right to resist, to be unpopular, to stand up for your convictions. That is the
true freedom, and without it there is neither freedom of any kind, nor even the illusion of
it.”5
The Black Law Dictionary categorizes liberty into civil liberty6, individual or
personal liberty7, natural liberty8 political liberty9 and religious liberty10. The words
freedom, liberty and license are generally used to denote the power to act, speak and
think without any imposed external restraints.11The term „freedom‟ is synonymous to
4 th
Brain A Garner ed Black Law Dictionary, 674 (West Group, St. Paul Minn, 7 ed. 1999)
5
Issaih Berlin, Freedom of its Betrayal, 103 (Prinston University Press, Prinston 2002) cited in Theodore I
Putterman, “Berlin’s Two Concepts of Liberty: A Resentment and Revision,” 38 (3) Polity 416 (2006)
6
Civil liberty is defined as “Freedom from undue governmental interference or restraint. This term
usually refers to freedom of speech and religion” id at 239
7
Personal liberty is defined as “one’s freedom to do as one pleases, limited only by the government right
to regulate public health, safety and welfare.” Id at 930
8
Natural liberty is defined as the “power to act as one wishes without any restraint and control, unless by
nature.” It cites William Blackstone, Commentaries on Law of England, 121 (1750) “this natural liberty..
being aright inherent in us by birth.. but every man, when he enters into society, gives up part of his
natural liberty as the price of so valuable a purchase; and in consideration of receiving advantage of
mutual commerce, obliges himself to conform to those laws, which the community has thought proper to
establish” ibid
9
Political liberty is defined as “person’s freedom to participate in the operation of government especially
in making of administration of laws.” ibid
10
Religious liberty is defined as “freedom to express without external control other than one’s own
conscience, any or no system of religious opinion and to engage in or refrain from any form of religious
observance or public or private religious worship ,as long it is consistent with the peace and order of the
society.” ibid
11 rd
The American Heritage Dictionary of the English Language, 723 (Houghton Miffin Company , Boston, 3
ed. 1996).
16
liberty and is used interchangeably although liberty emphasis on the power of free
choice.12For the purpose of the present study, the researcher has also used the words
„freedom‟ and „liberty‟ synonymously.
Salmond defines the contours of legal liberty as that “sphere of activity within
which the law is content to leave an individual alone.”13In adjudging this is fair of legal
freedom defined in a political society with set rules and laws, the fundamental question
that needs to be answered is that of obedience and coercion. In the words of Berlin- “why
should I or anyone obey anyone else? Why should I not live as I like? Must I obey? If I
disobey, may I be coerced? By whom and to what degree, and in the name of what, and
for the sake of what?”14According to Salmond the term „right‟ is often used in the widest
sense to include such freedom. A person may have right to do as he pleases on his own
but at the same time he has not any right or liberty to interfere with another‟s.15
In the view of Hohfeld- „a legal liberty of acting is accomplished by a legal right
not to be hindered in so acting‟.16If the law permits an individual a sphere of lawful and
innocent activity, it also generally takes care at the same time to protect this sphere of
activity from alien interference.17Hohfeld coined the term “no right” as correlative to
liberty. The term “no right” indicates the absence of right against another in some
respect. This „liberty-no right‟ relationship, according to Salmond can be said to be the
„result of a legal rule conferring the liberty on an individual.18
In the Kantian sense „freedom‟ of human volition lies in the field of „practical
reason‟.19 Human volition which to Kant is „free‟ is “not mere faculty of desire; but
rather the faculty of desire governed by reason of the subject before the choice is
made.”20 E concept of freedom and volition are thus „pure‟ that is to say, „not drawn
from experience, independent of any body of moral or legal rules.‟21
12
ibid
13 th
John Salmond, jurisprudence, 225(Universal Law Publishing Co. Pvt. , New Delhi, 12 ed., 2009)
14
Isaiah Berlin, “Two concepts of liberty” in Isaiah Berlin, Four Essays on Liberty, 121(Oxford University
Press, Oxford, 1969).
15
Supra note 10
16
Id. At 226
17
Ibid.
18
Id. At 226.
19
Julius Stone, “Human Law & Human Justice”, 83(Universal Law Publishing Co. Pvt., New Delhi, 2004).
20
According to Kant, “the freedom of the act of arbitrary choice is its independence of being determined
by sensuous impulses or stimuli; this is the negative expression of its freedom. The positive expression of
its freedom is the ability of pure reason to be practical of itself. But this is not possible otherwise than by
making maxim of every action comply with the condition that it be suitable as universal law.” Citing Kant,
Metaphysics of Morals (1797). Ibid.
21
Ibid.
17
John Rawls explains liberty by reference to three terms- first, “the agents who are
free,” second, “the restrictions or limitations which they are free from”, third, “what it is
that they are free to do or not to do” and a complete explanation of liberty would
sufficiently provide the relevant information about all these three things.”22 Individuals
are at liberty to do something when they are “free from certain constraints either to do it
or not do it and when their doing or not doing it is not protected from interference by
other persons.”23 A rather intricate complex of rights and duties characterizes any
particular liberty. Not only must it be permissible for individuals to do or not to do
something, but “government and other persons must have a legal duty not to obstruct.”24
Rawls emphasizes the importance of recognizing that the “basic liberties are to be
assessed as a whole, as one system since the worth of one liberty normally depends upon
the specification of the other liberties.” He argues that while it is true that greater liberty
is preferable but this greater liberty is to be seen as the system of library as a whole and
not with respect to each particular liberty seen in isolation. Liberties when left
unrestricted collide with one another. He illustrates with the example of intelligent and
profitable discussion.
Freedom which can also be understood as psychological experience25 that may
“differ from time to time and place to place,”26 is primarily a legal concept involving a
whole lot of legal consequences27. It has to be understood as freedom from legal
constraints.
1.3 Freedom of Expression

“Freedom of expression” denotes the broad medium of communication “a concept that
far transcends mere speech”.28 It signifies the progressive right of a free citizen to
express himself orally or on paper without any previous restraint and if the expression
22
John Rawls, A Theory of Justice, 202(Universal Law Publishing Co. Pvt., New Delhi, 2005).
23
Ibid.
24
Id. At 203.
25
Bruno Leoni, Freedom and The Law, 47(D Van Nostrand Company Inc., New Jersey, 1961).
26
“Freedom in itself is vague and intermediate. It must take its color from the context. Compare for
instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free
speech; it means speech hedged in by all laws against defamation, sedition and so forth; it means
freedom governed by law”. Privy Council in James v. Commonwealth (1936) 55 CLR 1.
27
Supra note 22 at 2.
28
Henery J Abrahim, “Freedom and the Courts: Civil Rights and Liberties in the United States”, 145
nd
(Oxford University Press, New York, 2 edi. 1972)
18
requires test of truth, the prerogative necessarily extends to the post-utterance period29. It
is important to note that freedom of expression extends not only to speech but also to
such areas as assembly, petition, press, media, lawful picketing and demonstrative
protests.30 “Freedom of expression is a liberal puzzle. It is prized by liberals for reasons
they may not understand.31”
Human being not merely acts to his surroundings. He has ability to think, design,
and to create. Human beings are blessed creatures to have distinct ability to express their
feelings, views, opinions and thoughts by means of speech, oral or written. Thinking,
formulating and holding opinions distinguish him from rest creatures. They constitute an
integral and indispensable part of his personality. The urge to communicate to other
fellow beings, the opinion so formed and held is as natural to him as the faculty of
thinking.
“Freedom of Expression” is regarded as fountain-head of civilization. The
germinal idea of this freedom is embedded in cultural heritage of mankind. Freedom of
expression primarily means an inherent right of a person to express “one‟s own belief,
convictions, views, thoughts, and opinions freely either by verbal communication or
through gestures, by writing, printing, pictures or any other mechanism. According to
A.J. David Richard “the creatures who might be communicating telepathically through
pure thoughts and valuing right to conscience and free thought, an equal respect for right
to free speech would be of no importance”32. However, this is not the case with human
beings. For them rationality flows from their capacity for free speech and writing and
from an appropriately supportive material and cultural environment for their cultivation
and exercise.33 The medium through which we communicate transforms our ability both
as an individual and as community to innovate and explore rational thoughts. Freedom of
expression is thus essentially a civilizing factor without which civilization cannot evolve
or grow. Therefore freedom of thought and opinions is a precious right and next
important only right to live.
29
ibid
30
ibid
31
Joseph Raz, “Free Expression and Personal Identification” 11 OJLS 303 (1991)
32
David A. J. Richards, “Toleration and the Constitution” 166 (Oxford University Press, New York, 1986)
33
Id at 167
19
1.4 Evolution of the Concept

Philosophers of Enlightenment era did not consider freedom of expression as a separate
topic and they considered it synonymous to freedom of the press. Actually in any kind of
argument they used in defense of print publications were similar to those made in favour
of freedom of speech34.
The modern concept of freedom of expression which includes freedom of the
press has evolved as an integral issue in the struggle against absolute despotism which
held sway in the East and the West for long time. The Course of its evolution was beset
with trials, tribunals, immense suffering and sacrifices. In the long drawn crusade for
attaining this ideal the dissenters whether religious prophets, philosophers, poets,
political rebels or other non-conformists had to pay heavy price for giving voice to their
beliefs.
1.5 Significance of Freedom of Expression

The right to freedom of speech and expression is essential for preserving human liberty,
development and growth of human seldom along with the aggrandizement of an effective
social and democratic life. All the major legal systems recognize this right as
fundamental to human existence. All written constitutions and Bill of Rights unfailingly
protect freedom of speech and expression as one of the fundamental liberties guaranteed
against suppression or regulation.35 Freedom of speech and expression has been held to
be basic and indivisible for a democratic polity. It is the foundation of a democratic
society and it is essential to the rule of law and liberty of citizens.36
Political sophists have argued for liberty of opinion and discussion which says
“speech is entitled to a greater degree of immunity from regulation than other forms of
conduct which cause similar harm or offence.”37There are still disagreements about the
exculpation of a free speech principle where they may be any good reasons for
considering free speech as special or it is made subservient to the other rights.
Gamut of arguments has been invoked over time in defense of freedom of
expression. All the theories arguing in the favor of freedom are not jointly exclusive and
34
Elizabeth Powers , Freedom of Speech: The History of an Idea, 20 (Bucknell University Press, Plymouth,
2011)
35 nd
Eric Barendt, Freedom of Speech, 1 (Oxford University Press, New York, 2 ed., 2005).
36
In Re: D. C. Saxena, AIR 1996 SC 2481.
37
Dario Milo, Defamation and Freedom of speech, 55(Oxford University Press, New York, 2008)
20
many more can later may be formulated. These arguments can be categorized into
various groups such as cultural utilitarian and normative.38 Each argument has its roots in
the similar tradition.
1.5.1 Furtherance of Democracy

Free speech locates its value in the role it plays in the sphere of justice or political
morality thereby making it an intrinsic feature of any genuine constitutional
democracy.39There are both positive and negative aspects to this view of free speech,
reflecting the perspectives of both speaker and listener, and marking the different roles of
the citizen as active participant, on the one hand, and as recipient of the state‟s
commands, on the other.40
At the heart of the freedom of speech, in its positive aspect lies the citizen‟s right
to participate, as a contributor to political debate, in the collective pursuit of justice. 41A
constitutional guarantee of freedom of speech ensures this ability to assist in the
operation and development of institutional arrangements that serve common
good.42Freedom of speech serves the ends of justice by denying government the ability
to stifle moral and political discussion, especially where it concerns the merits of the
current conduct of government of the legitimacy of the prevailing distribution of
power.43
Free political discussions are believed to provide for the best solutions in any
conflict arising within a community, as well as producing the most valuable legislation.44
Discussion also serves to disarm discontentment and revolutionary tendencies in a
38
This classification of arguments has partly been taken from Joris Van Eijatten’s In Praise of Moderate
Enlightenment: A taxonomy of Early Modern Arguments in Favor of Freedom of Expression. In the essay
Eijnatten has meticulously categorized sixteen arguments in favor of freedom of expression. They are –
1.Normative texts; 2.Religion; 3.Culture; 4.Eduaction; 5.Nationhood; 6.Eschatology; 7.Anthropology;
8.Utility; 9.Trade and Commerce; 10.Politics; 11.Natural law or human rights; 12.Security; 13.History;
14.Society; 15.Criminal law; 16.Constituitional law. These sixteen arguments can be broadly clubbed into
four heads- Normative(natural law, anthropology), Legal(criminal and constitutional law), Utilitarian(
education, utility, trade and commerce, security and social peace) and Cultural(normative texts ,religion,
culture, nationhood, eschatology, politics and history),
39
T.R.S. Allan, “Common Law Constitutionalism and Freedom of Speech,” in Jack Beaston and Yvonne
Cripps ed., Freedom of expression and freedom of information: Essays in Honour of Sir David Williams, 17
(Oxford University Press, New York, 2002).
40
Ibid.
41
Ibid.
42
Ibid.
43
Id. At 18.
44
Frede Castberg, “Freedom of Speech in the West: A Comparative Study of Public Law in France, The
United Nations and Germany”, 422(Oslo University Press ,Oslo,1960)
21
society.45It is only when the participants in the democracy i.e the voters are able to
exercise their rights as citizens by having the widest possible scope for exchange of
opinions about the society in which they live, the ways in which the society operates that
a peaceful democratic change becomes possible.46 Such freedom promotes a tendency to
compromise solutions, which is one of the goals at which the democracy aims.47
As Justice Khanna points out “regimentation of ideas cannot co-exist with
democracy. It is not for those in power to determine what views should be allowed to be
known by the people and what view be withheld from them. Any attempt to deny them
the sources of knowledge betrays a distrust of the people. Such an approach strikes at the
very basis of democracy.”48 Khanna tells us matter of factly that whenever the authority
in power suppresses expression, they end up being the victims of their own policy as by
restricting the freedom they deny themselves the benefit of knowledge and awareness of
public feelings and remain in ignorance of the seething discontent generated by the
failure of their policies.49
The roots of the argument from democracy can be found in the writings of
Alexander Meiklejohn who conceives democracy as an exercise in collective self-
governance. Meiklejohn has explained the relevance of free speech to this form of
government using the analogy of the traditional American town meeting. 50He argued
that, at such a meeting, citizens assemble to discuss and act upon matters of public
interest. “What is essential is not that everyone should speak, but that everything worth
saying shall be said.”51It followed from self-government that citizens should be able to
enjoy absolute immunity in relation to public discussions.52Public discussion is speech
which bears direct or indirect influence upon the issues which voters have to deal as a
matter of public interest.53 Meiklejohn explains the necessity of hearing opposing ideas
for the furtherance of self-government in the following words-
45
Ibid.
46 th
Richard Stone, Civil Liberties and Human Rights, 286(*Oxford University Press, Hamisphere, 9 ed.,
2012).
47
Supra note 47.
48
H.R. Khanna ,Liberty Democracy and Ethics, 27-28(Radha Krishna Prakashan, New Delhi, 1979).
49
Ibid.
50
Alexander Meiklejohn, Free speech and Its Relation to Self Government , 22-25(The LawBook Exchange
Limited, New Jersey, 2004).
51
Ibid.
52
Dario Milo, Defamation and Freedom of Speech, 62(Oxford University Press, New York, 2008).
53
Ibid.
22
“Shall we give a hearing to those who hate and despise freedom to those who, if
they had the power, would destroy our institutions? Certainly, yes! Our action must be
guided, not by the principles, but by ours. We listen not because they desire to speak, but
because we need to hear. If there are arguments against our theory of government, our
policies in war or in peace, we the citizens, the rulers, must hear and consider them
ourselves. That is the way of public safety. It is the program of self-government.”54
Meiklejohn primarily makes a distinction between speech which is public and
which is private. Public speech deserves protection because it means of furtherance of
democracy which is a government of the people, for the people, by the people.
In R v. Shayler55 the House of Lords emphasized the importance of freedom of
expression in a democracy in the following terms-
“Modern democratic government means government of the people, by the people,
and for the people. But there can be no government by the people if they are ignorant of
the issues to be resolved, the arguments for and against different solutions and the facts
underlying those arguments. The business of government is not an activity about which
only those professionally engaged are entitled to receive information and express
opinions. It is, or should be a participatory process. But there can be no assurance that
government is carried out for the people unless the facts are made known, the issues
publicly ventilated. Sometimes, inevitably, those involved in the conduct of the
government, as in any other walk of life, are guilty of error, incompetence, misbehavior,
dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly
wish that the facts relating to such matters are not made public. Publicity may reflect
discredit on them or their predecessors. It may embarrass the authorities. It may impede
the process of administration. Experience, however shows, in this country and elsewhere,
that publicity is a powerful disinfectant. Where abuses are exposed, they can be
remedied. Even where abuses have already been remedied, the public may be entitled to
know that they occurred”.56
Thus, free speech is the cardinal principle of a democratic society without which
a true and healthy democracy cannot exist.
54
Supra note 36 at 65-66.
55
[2002] UKHL 11.
56
As per Lord Bingham of Cornhill- “…that errors in a good government tand in a bad are equally almost
incident; for what magistrate may not be misinformed…But to redress willingly and speedily what hath
been erred…”
23
1.5.2 Advocacy of Minority Rights

In an ideal democracy, the majority will take the opinions and wishes of the minority
into account meaning thereby that every citizen has the right to speak up and call
attention to his own interests and opinions and freely advance his arguments. 57 Silencing
the minority cannot be option in a democratic society.58 The repression of political and
philosophical view sis the anti-thesis of democracy and the two cannot co-exist.59 Thus,
free speech is essentially a means of protecting the liberty of minorities and minority
arguments and ideas.60
Freedom to express oneself, understood „to include not mere speech but physical
action in lieu of complimentary to words, is central to civil liberties in the sense that it is
impossible to imagine a free political culture without it.61
1.6 Meaning of Freedom of Press

Free press is prerequisite for a democratic society. Present status of the press has been
acquired after long struggle for its freedom. Several democratic movements contributed
to make it free from governmental control. Free press is the most hard earned right was
fought in the name of people. The concept of free press explained by Blackstone as:
“The liberty of press indeed is essential to the nature of Free State; but this
consists in laying no previous restraint on publications and not in freedom from censure
for criminal matter when published. Every free man has an undoubted right to lay what
sentiments he pleases before the public; to forbid this, is to destroy the freedom of press;
but he publishes what is improper, mischievous or illegal he must take consequence of
his own temerity. To subject the press to restrictive power of licensor is to subject all
freedom of sentiments to the prejudice of one man an make him the arbitrary and
infallible judge of all controverted points in learning, religion and government. But to
punish any dangerous or offensive writing, which when published shall on a fair and
impartial trial, be adjudged on a pernicious tendency, is necessary for the preservation
57
Supra note 41.
58
J.S. Mill , On Liberty and Other Essays 7 (Batoche Books, Kitchner, Canada 2001)
59
Supra note 43.
60
Ken I. kirsch, “Freedom of Speech: Rights and Liberties under the law”, 20(ABC-CL10, Santa Barabara,
California, 2003).
61
Conor Gearty, “Civil Liberties”, 122(Oxford University Press, New York, 2007).
24
of peace and good order of government and religion, the only solid foundation of
liberty”62.
A.V. Dicey also define freedom of the press on similar line of Blackstone and
said: “The freedom of press means the right of a person to publish what he pleases in the
books or newspapers but law of England do not recognize any special privilege attached
to the press”63.
Both Blackstone and A.V. Dicey do not seem in favour of prior restraint on the
press and free press is which is free from control of governmental authorities and
absence of previous restraint. First Royal Commission on the Press (1947-48), did not
choose to discuss more on the concept and significance of free press. However another
Royal Commission on the Press (1977) laid emphasis on the importance of free press:
“that degree of freedom from restraint which is essential to enable proprietors, editors
and journalists to advance the public interest by publishing facts and opinions, without
which a democratic electorate cannot make responsible judgment.64”
First Press Commission of India attempted to define the concept of press freedom
in the simplest sense as: “Freedom to hold opinion, to receive and impart information
through the printed words without any interference from public authority65”.
The judgment handed down by the Press Council India in Varghese case throws
some light on the concept of freedom of the press as following:
“Freedom of press is commonly understood as the freedom of express, idea,
views and information through the printed material and published for circulation; and
free from interference, pressure, restraint or compulsions from whatever source;
government or social.”66
The view of Press Council is more in favour of providing more liberty to the
press not only from state control but even from social pressure. This view places the
press at special a bit little special status than an individual. Most of the definitions given
by different jurists and commission signify that freedom of press is the very basis for
growing and healthy democratic society. They all unanimously advocate the absence
62
William Blackstone, “Commentaries on Law of England”, 152 (Volume IV,1765)
63 th
A.V. Dicey, “Introduction to the Study of Law and Constitution” 239 ( Oxford University Press ,8
edi.2010)
64
O.R. Mcgregor, Final Report / Royal Commission on the Press, 8 (Stationary Off, London, 1977)
65
The Report of First Press Commission 358(1954)
66
K.K.Birla v. Press Council of India & Ors, ILR 1976 Delhi
25
previous restraint and any censorship on the press. Thus absence of previous restraint
and censorship can be called free press.
From a survey of the various decisions of the Supreme Court and other relevant
literature available on the subject, it can be deduced that the “freedom of the press”
means right to publish and circulate through the medium of printed words or material,
news, views, information, ideas and comments free from restriction, interference,
coercive or distorting pressures from any source, whatever- whether that source be the
government, public authorities, political parties, trade unions, advertisers, Press barons,
management or any other conceivable agency.
1.7 Importance of Free Press

The term “freedom” refers to the state of liberty, or right and privilege to express and act
according one‟s own free choice or will. Press being the strongest medium of
communication becomes significant to disseminate information to the society. It is the
most important and vital medium to express one‟s opinion, views, and philosophy. Free
press plays vital role in a democratic society as it provides a larger platform to share any
expression to largest number of people.
Press generally refers to the print media for the purpose of present research work.
But in today‟s world besides newspaper there are other media also playing significant
role as medium of communication and information. E-newspapers, electronic media and
social media have acquired more value than newspapers. The explosion and
revolutionary advances in communication technology has made easy access to electronic
media. Moreover, it does not require any efforts which are needed to read a newspaper
and even an illiterate person can watch and hear the news. Thus electronic media has
gained great importance in modern times. But the present study is focused only on print
media covering a little of electronic media for critical appraisal of misuse of the right of
free expression.
What is being observed that the press enjoying more freedom than an individual
just because it has been designated as guardian of democracy and protector of public
interest. Press is called watchdog of the other organs of the government and it has
acquired a privilege to criticize the acts of government, legislature and judiciary in social
or public interest. An independent and free press works as check on the governmental
authorities like exposing abuse of power and making it known to the public. Exposing
26
deeply rooted corruption in any system can make or unmake a government in a

democracy. Thus having so much power, the press play vital role in making public
opinion and fostering democratic principles.
Apart from that media can play very significant role in fighting with social evils
like female infanticide, child marriage, sati, violence against women and children. Free
press is the advocate of citizens‟ rights and has power to raise voice against the dictator
government, atrocities, corruption and malpractices etc. The press and other media work
day and night in order to gather information and deliver news at no time. The people of
the nation are kept informed about the incidences and happening in the country and
outside. Thus “freedom of the press” is essential pre- condition to the fulfillment of
democratic ideas. Therefore it is submitted that the press and other news media should
work for strengthening democracy, sovereignty and integrity of the country. Thus it
becomes the duty of the press to develop an environment where the public can cultivate
fraternity, brotherhood, communal harmony and unity.
In comparison to the democratic nations, the press enjoys less freedom in
socialist countries. However, in the democratic countries also, we find numerous
instances of harassment and threats to newspapers and journalists by ruling regime. In
democratic nation a person‟s dignity can be preserved through press and media and
hence it become significant to maintain it freedom from within and outside. However the
question extent of press freedom is debatable issue and it still goes unsettled on the point
of whether press should be provided absolute and expressed freedom like America.
A popular government as John Madison aptly put in, “without popular
information or means of acquiring it, is but a Prologue or a Tragedy, or perhaps to
both…….And a people who mean to be their own governors must arm themselves with
the power which knowledge gives67.” A free press plays vital and significant role in
political, economic, social and cultural spheres of life of a nation. By disseminating
diverse news and views relating to the policies and activities of the government, it
educates the people and helps them to form rational judgment about the achievements,
doing or misdoings of their representatives and public servants in the seat of the power.
Widest dissemination of information from various sources and free discussion and
criticism by free press ensure the representativeness and accountability of the
government to the people.
67
John Madison , Amendment I (Speech and Press): Report on Virginia Resolutions 97(1800)
27
It is generally observed that previous restraint and censorship is undesirable and

bad norm for the press. But at same time when the press places partial and biased news
content which can be detrimental for even democracy. Inaccurate and biased news have
potential to instigate against the government, may lead to social unrest and can inflict
unimaginable harms. Thus this power needs to be utilized by publishing accurate and
impartial news. Unbiased and correct news crates an informed society at one hand and it
helps them to make right opinion at the other.
The Apex Court observed that “freedom of speech and of the press lay at the
foundation of all democratic organizations, for without free political discussion no
public education, so essential for the proper functioning of the press of popular
government, is possible”68.
A free press committed to public service has immeasurable potential for public
good. It can enlighten public opinion and help promote social cohesion, moral
regeneration, national integration, international understanding, cooperation, amity and
peace. By the power and influence of it pen, it can facilitate the evolution of egalitarian
society, in which economic disparities, unequal opportunities and social inequalities are
reduced to the minimum. It is now self-evident that freedom of the press is essential for
smooth functioning of a democratic system of the government.
1.8 Freedom of Press: Ambit and Scope

The Preamble of the Indian Constitution provides to all citizens “liberty of thought,
expression, belief, faith and worship”. The constitutional importance of “freedom of
speech and expression” is enshrined in the Preamble of the Constitution and it is
transformed as one of the fundamental right under Article 19 (1) (a) as “right to freedom
of speech and expression”. It is to “express one’s convictions and opinions or ideas
freely, through any communicable medium or visible representation such as gesture,
sings and the like. It means to lays what sentiments; a free citizen pleases before the
public”.69
Although not explicitly mentioned, “Freedom of speech and expression” includes
“freedom of press” within it ambit that has been held in several judgments of the
68
Indian Express Newspapers(Bombay) private ltd. V. Union of Indian, 1985 (2)SCR 287.
69
Lovell v. City of Griffin, (1937) 303 US 444.
28
honorable Supreme Court70. Article19(1) (a)71 of the Indian Constitution guarantees to

the citizens, the right to “freedom of speech and expression”. The ambit of this freedom
is not confined to mere oral utterances. It also includes freedom to communicate or
circulate information and views by written words or through printed material. It is thus
obvious that the freedom of the press is an integral part of „freedom of expression‟ and
Article 19(1) (a).
Freedom of the press is encompasses more than a neutral medium of
communication between people and their elected leaders. In India prior to the
independence there was not constitutional or legal guarantee of liberty of an individual
and as well as of the press. At the maximum some common law freedoms were provided
to the press as the Privy Council observed that:
“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”.72
The purpose of the press is to advance the public interest by publishing facts and
opinions without which democratic electorate cannot make responsible judgment.
Newspapers being purveyors of news and views having g bearing on public
administration very often carry material which would not be palatable to government and
other authorities.73
Unlike the American Constitution, Article 19 (1) does not specifically or
separately provide the liberty of the press. The omission was explained by Dr. B. R.
Ambedkar as he observed that the press has no special rights which are not to be given or
which are not to be exercised by the citizen in his individual capacity. The editor or the
manager is merely exercising the right of the expression and therefore no special mention
is necessary of the freedom of the press. It is now settled law that the right to freedom of
speech and expression in Article 19 (1) (a) includes the liberty of the press.
70
Sakal Papers (P) Ltd. v. Union of India, AIR 1962, SC 305; Bennett Coleman & Co. & Ors v. Union of India
AIR 1973, SCR (2) 757; Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, AIR 1994, 2 SCC 434;
Indian Express Newspapers (Bombay) Private Ltd. v. Union of India & Ors. 1985 (2) SCR 287
71
The Constitution of India, Article 19 (1) (a) reads: “All citizens shall have the right to ‘freedom of speech
and expression”.
72
Channing Arnold v. King Emperor AIR 1914 PC 116.
73
H. K. Saharay, The Constitution of India 264 (2012).
29
The present study is objected to critically analyse the provisions of the Indian
Constitution and other legal instruments which recognize freedom of the press as an
integral part of the “freedom of speech and expression”, as one of fundamental rights of
citizens. It is also to be examined how far freedom of press has constitutional
significance in achieving the free, fair and real democracy. The study also covers the
approach taken by the Supreme Court of India on the subject. The main object of
providing guaranteed freedom of press is to create a Fourth Estate free from the control
of State authorities, as an additional check on the three governmental organs i.e the
executive, the legislature and the judiciary.74
The primary function of the press to disseminate objective information on all
aspects related to social, economic and political spheres of life. In order to achieve the
main objects, the press has also been provided that same freedom which is guaranteed
under the “right of freedom of speech and expression”. In is not only our country which
has recognized press freedom but it has universally been recognized through
international instruments or various Conventions. General Assembly of United Nations
Organisation universally recognized this right on 10th December, 1948. The essence of
the declaration is contained under Article 1975 of “Universal Declaration Human Rights.
Similar approach had been taken by the Supreme Court in regard of freedom of
holding opinions without interference. The Court observed that:
“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.”76
Freedom of the press is not expressly provided in Indian Constitution or in any
other legal instrument but it is implicit or implied in the freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution of 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). Article 19(1)(a) corresponds to the First
74
New York Times Co. v. Sullivan, 376 US 255 (1964).
75
Universal Declaration of Human Rights, 1948,Artilce 19 reads: “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.”
76
Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294.
30
Amendment of the United States Constitution which says, congress shall make no law
abridging the freedom of speech or of the press.77
The first well-known instance of a written Constitution was that of that of the
United States of America which set up an original pattern and which for its brevity,
restraint and simplicity is universally hailed as a remarkable document. 78The provisions
in the US Constitution have two notable features i.e., (i) freedom of press is specifically
mentioned therein and (ii) no restrictions are mentioned on the freedom of speech. 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,79 and cannot claim any
privilege unless conferred specifically by law, as such, as distinct from those of any other
citizen. Freedom of the press has three essential elements. They are:
 freedom to access all sources of information either of one‟s own views, opinions,
convictions and beliefs or
 borrowed from someone else or printed under the direction of the person,80
 freedom of publication, and
 freedom of circulation.
1.8.1 No Pre-censorship on Press

“Liberty of the Press” as defined by Lord Mansfield consists in “printing without
previous licence subject to the consequences of law”. The freedom of the press means
the right to print and publish what one pleases without any previous permission.
Imposition of pre-censorship on publication is therefore violative of the freedom of the
press unless justified under clause (2) of Article 19.81
The imposition of censorship on a journal is amount to violation of right
protected under article 19 (1) (a). The question validity of censorship came up for the
first time before the Apex Court in Brij Bhushan case,82 when the Chief Commissioner
77
M.P. Jain, Indian Constitutional Law986 (2008).
78
M. V. Pylee, Select Constitutions of the World 8 (2002).
79
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
80
M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395.
81
Article 19 (2) deal with the provision of “Reasonable Restrictions on Freedom of Speech and
Expression”.
82
Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
31
of Delhi issued an order83 against the petitioner, the printer, publisher and editor of an
English weekly “the Organiser” published from Delhi, directing them to submit for
scrutiny in duplicate before publication till further orders, all communal matters and
news and views about Pakistan including photographs and cartoons other than those
derived from the official sources or supplied by the news agencies. The Court struck
down the order and held that:
“The imposition of pre-censorship of journal is a restriction on the liberty of the press
.which is an essential part of the freedom of speech and expression declared by Article
19 (1) (a)84.
1.8.2 No Pre-stoppage of Publication on the Matter of Public

Importance
In the case of Virendra v. State of Punjab,85 the Supreme Court held that banning of
publication in the newspapers of its own views of correspondents about the burning topic
of the day was a serious encroachment on the valuable and cherished right to freedom of
speech and expression. Similarly, in the case of Reliance Petrochemicals,86the Supreme
Court ruled that pre-publication ban even under a court injunction could be justified in
the interest of justice only when there was a clear and imminent danger to the
administration of fair justice and not otherwise.
Likewise, the Apex Court held that neither the government nor the officials had
any authority to impose a prior restraint upon publication of a material on the ground that
such material was likely to be defamatory of them.87 The right to publish the life-story of
a condemned prisoner, in so far as it appears from the public records, even without his
consent or authorization has been held to be included in the freedom of the press
guaranteed under Article 19 (1) (a). No prior restraint upon such publication can be
imposed.88
83
The East Punjab Public Safety Act, 1949 Section 7 (1) (c) reads: "The Provincial Government or any
authority authorised by it in this behalf if satisfied that such actions necessary for the purpose of
preventing or combating any activity prejudicial to the public safety or the maintenance of public order,
may, by order in writing addressed to a printer, publisher or editor”
84
Supra note 65
85
AIR 1957 SC 896.
86
Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspaper, Bombay Pvt. Ltd AIR 1989 SC
190.
87
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.
88
Khushwant Singh v. Maneka Gandhi, AIR 2002 Del 58.
32
1.8.3 Right to Access to the Source of Information

In M. Hasan v. Government of Andhra Pradesh,89 the Andhra Pradesh High Court held
that the refusal to Journalist and Videographer seeking interview with condemned
prisoners amounted to deprivation of citizens fundamental right to freedom of speech
and expression under Article 19 (1) (a). As far the exercise of fundamental rights
concerned, the court said that position of a condemned prisoner was on par with a free
citizen. He had a right to give his ideas and was entitled to be interviewed or to be
televised. The press while interviewing a person, must first obtain his willingness.
But, in the case of Saroj Iyer v. Maharashtra M.C.I.,90 the Bombay High Court
held that right to interview the prisoners is not absolute, nor Article 19 (1) (a) confers
any right to have unrestricted access to means of information. A Journalist has the right
under Article 19 (1) (a) to publish as journalist, a faithful report of the proceedings
witnessed and heard in the court. However in certain matters such as the commission of
the offence of rape, unnecessary publicity may lead to the miscarriage of justice. It has
been observed by the Apex Court in State of Maharashtra v. Rajendra Jawanmal
Gandhi,91that a trail by press, electronic media or public agitation was the very antithesis
of the rule of law.
1.8.4 Freedom of Circulation

Freedom of speech and expression include the freedom of propagation of one‟s ideas or
views and this freedom is ensured by the “freedom of circulation”. The freedom of
speech and press are not so much for the benefit of the press as for the benefit of the
general community. It is the duty of the government to ensure the circulation of
newspapers should arise, because the community has a right to be supplied with
information and also government owes a duty to educate the people within the limits of
its resources.92
In the case of Romesh Thaper v.State of Madras,93the Provincial Government in
exercise of its powers under Section 9(1-A) of the Madras Maintenance of Public Order
Act, 1949, by an Order, imposed a ban upon the entry and circulation of the petitioner‟s
89
AIR 1998 A.P. 35.
90
AIR 2002 Bom. 97.
91
AIR 1997 SC 3986.
92
P. M. Bakshi, The Constitution of India 39 (2007).
93
AIR 1950 SC 124.
33
weekly journal “Cross Roads” printed and published in Bombay. The majority of the
Supreme held the Order invalid as violative of the freedom contained in Article 19(1)(a).
The court referred to two decisions of the U.S. Supreme Court and quoted with approval
the following passage there from that liberty of circulation is as essential to that freedom
as the liberty of publication. Indeed, without circulation, the publication would be of
little value.
There would be violation of the liberty of the press not only when there is a direct
ban on the circulation of a publication as was the case in Romesh Thapar, but also when
some action on the part of the government adversely affects the circulation of the
publication.
1.8 .5 Freedom in the Volume of Circulation

The Supreme Court in the case of Sakal Papers case94 held that the right to regular the
propagate his guaranteed in Article 19(1)(a) extended not merely to the matter which he
was entitled to circulate but also to the volume of circulation.
In this case, the Newspapers (Price and Page) Act, 1956 empowered the Central
Government to regulate the prices of newspapers in relation to their pages and size and
also to regulate the allocation of space for advertising matters. In pursuance of this
provision, the central Government issued the Daily Newspapers (Price and Page) Order,
1960 which fixed the maximum number of pages that might be published by the
newspaper according to the price charged. The order fixed a minimum price and number
of pages which a newspaper was entitled to publish. The petitioners were required to
increase the price of their newspaper if they were increasing the pages. Such increase in
price would reduce the volume of circulation. On the other hand, if the petitioners were
to reduce the price, they were required to decrease the number of pages. That would have
the effect of reducing the column, space for news, views or ideas.
The Order was challenged as violative of the freedom of the press, since its
adoption meant either the reduction in the existing number of pages or raising the price,.
In either case, there would be reduction of the circulation of the newspapers and
therefore, a direct infringement of the liberty of the press. The Order thus, acted as a
double edges knife. It cut the circulation by a price rise or publication or dissemination
of news, ideas and knowledge by restricting column space consequent to decrease in the
94
Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 305.
34
number of pages. The Supreme Court struck down the Order and held it to be inoperative
since the impugned Act and the Order placed restraints on the volume of circulation.
95
Again, in Bennett Coleman the Supreme Court laid down that freedom of
Speech and expression was not only in the volume of circulation but also in the volume
of news and views. In this case, the import policy for Newsprint for 1972-73 read with
the Newsprint Policy as being violative of Article 19 (1) (a) the Court held that the
newspapers should be left free to determine their pages, their circulation and their new
edition within their quota which had been fairly fixed.
1.8.6 No Excessive Taxes

In Indian Express Newspapers (Bombay) Pvt. Ltd v. Union of India,96the Supreme Court
emphasized that the Government should be more cautious while levying taxes on matters
concerning newspaper industry than while levying taxes on other matters.
In this case, the petitioner, who was the editors, printers and publishers of
newspapers, periodicals, magazines, etc., challenged the validity of the imposition of
import duty on newsprint under the customs Act, 1962 read with the customs Tariff Act,
1975 and levy of auxiliary duty under the Finance Act, 1981 on newsprint.
The Supreme Court held that newspaper industry had not been granted exemption
from taxation. However, the exercise of power to tax should be subject to scrutiny by
Court. The imposition of a tax like the customs duty on newsprint, the Court said, was an
imposition of tax on Knowledge and would virtually amount to a burden imposed on a
man for being literate and for being conscious of his duty as a citizen to inform himself
of the world around him.
1.8.7 No Indirect Attack on Press

In Bennett Coleman’s case,97 the Supreme Court laid down the test of direct and
immediate impact of the impugned action on the freedom of speech and expression
guaranteed under Article 19(1)(a). Applying this test in Express Newspapers Pvt. Ltd. v.
Union of India,98 the Supreme Court held that the notice of re-entry upon the forfeiture
of lease and of the threatened demolition of the Express Buildings, intended and meant to
95
Bennett Coleman and Co. v. Union of India AIR 1973 SC 106.
96
AIR 1986 SC 515.
97
Supra Note 95
98
AIR 1986 SC 515.
35
silence the voice of the Indian Express and therefore, violative of Article, 19(1)(a) read
with Article 14 of the Constitution.
In this case, the petitioner was allotted, under an 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 and
served a notice for re-entry and for its demolition. The material available in this case was
sufficient to hold that the impugned notices suffered from arbitrariness and non-
application of mind. Hence, they were held violative of Articles 19(1)(a) and 14.
It has been held that the policy of the Government of allotting the advertisements,
discriminating against certain newspapers, violated not only the freedom of the press but
also the equality clause contained in Article 14. Such policy affects formation of healthy
public necessary for good democracy.99
1.8.8 Freedom of Employment

The freedom of the press includes the freedom of employment or non-employment of the
necessary means of exercising the right and therefore any limitation on the choice of
employment in the editorial force of a newspaper may undermine the independence of
the press.
In the case of Express Newspapers (P) Ltd. v. Union of India,100 the validity of
the Working Journalists Act, 1955 was challenged. The Act was enacted to regulate
conditions of service of persons employed in newspaper industry, e.g., payment of
gratuity, hours of works, leave, fixation of wages, etc.
The Act was held valid by the Supreme Court and it was observed that the press
was not immune from laws of general or ordinary forms of taxation or laws of industrial
relations. The impuged Act, the Court said, was passed to ameliorate the service
conditions of workmen in the newspaper industry and therefore, it imposed reasonable
restrictions on the right guaranteed under Article 19(1) (a).
Relying upon the propositions of law laid down in Express Newspaper case,101
the Supreme Court in India Express Newspapers(P) Ltd. v. Union of India,102held that
99
Sushil Choudhury v. State of Tripura, AIR 1998 Gau 28.
100
AIR 1958 SC 578.
101
Ibid
102
AIR 1995 SC 965. In this case the working journalists and other Newspaper Employees (Conditions of
Service) and Miscellaneous Provision Act, 1955 an amended by the Act of 1989, Classified different
36
the units of a newspaper establishment which had branches all over India, could be
clubbed together for the purpose of fixation of wages on all-India basis.
The classification of newspapers establishments on all-India basis for purpose of
fixation of wages was not bad in law and not violative of Articles 19(1)(a) and 19
(1)(g).By the Constitution (Sixth Amendment) Act, 1957, Entry 92-A was inserted in list
I and Entry 54 in List II was amended to make it subject to the provisions of Entry 91-A
of List I. the definition of goods “in Section 2(d) of the Central Sales Tax Act, 1956 was
also amended to bring the said definition in accord with the above amendment. These
amendments were introduced to prohibit imposition of Sales Tax on sale of newspapers.
Section 8(3)(b) read with Section 8(1)(b) of the Central Sales Tax Act, 1956 entitles the
manufactures of good to a concessional rate of 4 percent on the purchase of their raw
material. After the amendment of 1956, the Central Sales Tax authorities took the stand
that the printers/publishers of newspapers were not entitled to the benefit of Section 8 (3)
(b) read with Section 8 (1) (b) and imposed tax on raw material for producing
newspapers at higher rate of 10 percent.
The publishers of the newspapers questioned the action of the tax authorities
before the Supreme Court. The court held that the expression “goods” in Section 8 (3)
(b) could not be taken to exclude newspapers from its purview. The court said that the
above amendments were not intended to create a burden which was not there but to
remove the burden, already existing on the newspapers. The publishers of newspapers
were therefore held entitled to the concessional rates of sales tax on the raw material for
production of the newspapers.103
1.8.9 Commercial Advertisement Included

In the case of Hamdard Dawkhana104it was held that commercial advertisement were not
covered within the concept of freedom of speech and expression. In instant case, the
Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 was passed with a
view to the prevention of self-medication and self-treatment by prohibiting the
publication of advertisements of drugs having magic qualities for curing diseases. The
newspapers establishments into ten classes on the basis of their gross revenue. The Act further provided
for stepping up of the higher classes.
103
Printers (Mysore) Ltd v. Asstt. Commercial Tax Officer (1994) 2 SCC 434.
104
Hamdard Dawakhana (Wakf) LalKuan v. Union of India AIR 1960 SC 554.
37
Act was challenged as violative of the freedom of speech and expression guaranteed
under Article 19 (1) (a).
The Supreme Court held that the Act valid and ruled that the scope and object of
the impugned Act, its true nature and character was not interference with the right of
freedom of speech but it dealt with the trade and business. The provisions of the Act
were in the interests of the general public and placed reasonable restrictions on the trade
and business of the petitioner and were saved by Article 19(6).
The Supreme Court referring to Hamdard Dewarkhana Case, however, held that all
commercial advertisements could not be denied the protection of Article 19(1)(a), merely
become they were issued by businessmen.105
Explaining the effect of the combined reading of Hamdard Dewakhana’s case,
and Indian Express Newspapers Case, the Supreme Court in TATA Press Ltd. v.
Mahanagar Telephone Nigam Ltd.,106held that “commercial speech” could not be denied
the protection of Article 19(1)(a) merely because the same were issued by businessmen.
Holding that “commercial speech” was a part of the freedom of speech and
expression guaranteed under Article 19(1)(a), the Supreme Court explained the
importance of “advertisements” in our democratic economy in the following words:
Advertising is considered to be the corner-stone of our economic system. Low
prices for consumers are dependent upon mass production, mass production is dependent
upon volume sales and volume sales are dependent upon advertising. Apart from the
lifeline of the free economy in a democratic country, advertising can be viewed as the
life blood of free media, paying of the costs and thus making the media widely available.
Examined from another angle, the court explained that the public at large has a right to
receive the “commercial speech”. Article 19 (1) (a) not only guarantees freedom of
speech and expression, it also protects the rights of an individual to listen, read and
receive the said speech. An advertisement giving information regarding a life-saving
drug may be of much more importance to general public than to the advertiser who may
be having purely a trade consideration.
105
Indian Express Newspapers(Bombay) Pvt. Ltd. v. Union of India AIR 1986 SC 515.
106
AIR 1995 SC 2438.
38
1.8.10 Right to know and obtain Information

It has been held that in a government of responsibility like ours, it is elementary that
citizens ought to know what their government is doing. They have the right to know
every public act, everything that is done in a public way, by their public functionaries.
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. It has also been said that exposure to public gaze and scrutiny is one of the
surest means of achieving a clean and healthy administration. The concept of an open
government is said to be the direct emanation from the right to know which seems to be
implicit in the right of free speech and expression guaranteed under Article 19(1)(a).107
Further, that, the citizens have the right to decide by whom and by what rules
they shall be governed and they are entitled to call on those who govern on their behalf
to account for this conduct. So said, a citizen, prepared to pay requisite fee, is entitled to
ask for copies of public documents, to the inspection of such documents.108
With a view to provide for freedom to every citizen to secure access to official
information, in order to promote openness, transparency and accountability in
administration and in relation to matters connected therewith or incidental thereto, the
freedom of information Act 2002, has been passed. The Act provides for furnishing
information by the Public Information Officer, on request from the person desirous of
obtaining it, on payment of the prescribed fee.
The freedom of speech and expression includes the right to educate, to inform
and to entertain and also the right to be educate, informed and entertained.109 It also
includes the right of the consumer to be apprised of the ingredients of food products,
cosmetics and drugs, so that he may make a right choice as per his beliefs and opinions.
A division Bench of Delhi High Court in Ozair Hussain v. Union of India,110thus ruled
that it was the fundamental right of the consumer, under Articles 19(1)(a), 21 and 25, to
know whether the food products, cosmetics and drugs were of non-vegetarian or
vegetarian origin. Accordingly, the Court issued directions about declarations and
different coloured symbols to be displayed on packages of products regarding their
107
Union of India v. Accociation for Democratic Reforms, AIR2002 SC 2112.
108
R.L. & E. Kendra v. State of U.P., AIR 1985 SC 652.
109
Supra Note 107
110
AIR 2003 Delhi 103.
39
vegetarian or non-vegetarian origin.111 A limited exception has, however, been provided

as far life-saving drugs are concerned.
1.8.11 Right of the Voters to Know the Antecedents of the Candidates at

Election
Article 19(1)(a) guarantee the right to speak and oneself. It has been held that the
freedom of speech and expression includes the voter‟s speech or expression in case of
elections in a democracy. It has been said that voter speak out or expresses by casting
vote.112
The democratic government is a continual participative operation,113 and that “a
successful democracy posits an „aware‟ citizenry”.114 The Apex Court ruled that voters‟
right to know antecedents including criminal past of his candidate contesting election for
M.P. or M.L.A. was fundamental and basic for survival of democracy. Holding that
“democracy cannot survive without free and fair elections, without free and fairy
informed voters”, the court said that the voter had the right to get material information
with respect to a candidate contesting election for a post, which was of utmost
importance in the democracy, was implied in the freedom of speech guaranteed by
Article 19(1)(a)115.
To maintain the sanctity of elections and in particular to bring transparency in the
process of election, the Apex Court directed the Election Commission of India, to call for
on affidavit, by issuing necessary order, in exercise of its power under Article 324, 116
from each candidate seeking election to Parliament or a State Legislature, as a necessary
part of his nomination paper, information regarding his assets, educational qualifications
and criminal past, as well as present criminal record.
The Law Commission of India, in its 170th Report submitted in 1999 had made
recommendations in regard to furnishing like information by the candidate and debarring
him from contesting an election if charges had been framed against him by a Court of
Law. The Vohra Committee of the Government of India, in its Report, highlighted the
111
The prevention of Food Adulteration Act, 1954, contains such a provision in respect of articles of food.
112
Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112.
113
M.S. Gill v. Chief Election Commissioner, AIR 1978 SC 851.
114
Sec. Min. of Information and Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236.
115
Supra Note 112
116
Article 324 confers, power of superintendence, direction and control of the conduct of elections, on
the Election Commission. See infra, 743.
40
grave danger posed by the criminalization of politics. Despite the Reports of the Law
Commission and the Vohra Committee, the successive Governments had failed to take
action reforming the electoral process.
Holding that the Court could not pass any order, directing the Legislature to
amend the law, Delhi High Court directed the Election Commission to secure to voters,
information pertaining to assets, educational qualifications and antecedents of life of the
candidate contesting election. The order passed by the Delhi High Court was contested
by the Union of India in the Supreme Court as beyond the power of the Court. Modifying
the directions issued by the Delhi High Court, the Apex Court said that the right to get
information in democracy was recognized all throughout and that it was natural right
flowing from the concept of democracy117.
On the basis of the judgment rendered by the Apex Court,118 the Representation
of People Act, 1951 was amended by the Representation of People (Amendment)
Ordinance Act, 2002. Which was replaced by the Representation of People (3rd
Amendment) Act, 2002, the vires of that Act were challenged before the Supreme Court
in Peoples Union for Civil Liberties (PUCL) v.Union of India,119contending that the
changes introduced were not in accordance with what had been declared by the Apex
Court in Union of Indiav. Association for Democratic Reform.120Section 33B of the
impugned Act provided that despite the directions issued by the Apex Court, no
candidate would be required to disclose or furnish any such information which was not
required to be disclosed or furnished under the impugned Act.121
Taking a holistic view and adopting a balanced approach, the Apex 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/citizen. The court, however, held
that, there was no good reason for excluding the pending cases in which cognizance had
been taken by the Court from the ambit of disclosure. The Court further opined that
Parliament ought to have made a provision for furnishing information regarding the
assets and liabilities of the candidate, at the time of filing the nomination. Failure to do
so the Court ruled, had resulted in the violation of guarantee under Article 19(1)(a). The
117
Association for Democratic Reforms v. Union of India, AIR 2001 Delhi 126.
118
AIR 2002 SC 2112.
119
AIR 2003 SC 2363.
120
AIR 2002 SC 2112.
121
The Amendment Act, 2002 required the disclosure of information in respect of pending criminal
proceedings as well as past conviction.
41
failure to provide for disclosure of educational qualifications of the candidate had been
held as not violation of the freedom of expression.
Reiterating the law laid down in Association for Democratic Reforms case,122the
Apex Court ruled that the right of a voter to know the bio-data of a candidate was the
foundations of democracy, a facet of the right freedom of speech and expression
guaranteed under Article 19(1) (g). It would be the basis for free and fair election which
was a basic structure of the Constitution, the Court said.
The Apex Court distinguished the right of the voter to know the antecedents of a
candidate from the right to vote or stand as a candidate for election. While the former
right being a part of the fundamental right vested under Article 19(1)(a) which could not
be abridged, controlled or restricted by statutory provisions except as permissible under
the Constitution, the later right being a creature of Statute or special law, would be
subject to the limitations envisaged therein.
“Freedom of Voting” as distinct from “right to vote”, the Court held that it was a
species of freedom of expression and therefore, carried with it, the auxiliary and
complementary rights such as right to secure information about the candidate which was
conducive to the freedom. The Court further ruled that there could not be any distinction
between the fundamental rights mentioned in Chapter III of the Constitution and the
declaration of such rights on the basis of the judgment rendered by the Supreme Court.
Rejecting the contention that the right of the voter to know antecedents of a
candidate could be held to be derivative, the Court ruled that there was no such concept
of derivate fundamental rights. By interpretation, from time to time, the Supreme Court
has filled in the skeleton with soul and blood and made the fundamental rights vibrant,
which had no fixed contents.
122
Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112.
42
1.8.12 Right to Reply

In LIC case123 the Supreme Court held that the right to reply i.e., the right to get
published one‟s reply in the same news media in which something was published against
or in relation to citizen was a part of the freedom of speech and expression guaranteed
under Article 19 (1) (a). The respondent in this case was the executive trustee of the
Consumer Education and Research Centre (CERC), Ahmadabad, after undertaking
research into the working of the LIC, published a study titled “A Fraud on Policy
Holders: a Shocking Story”. The Study paper portrayed the discriminatory practices
adopted by the LIC which adversely affected the interest of the large number of policy
holders. Then a member named Shri N. C. Krishnan of LIC prepared a counter to the
respondent‟s study paper and published the same as an article in the “Hindu” challenging
the conclusions reached by the respondent in his study paper. The respondent prepared
the rejoinder which was published in the same newspaper.
The LIC publishes a magazine called the “Yogakshma” for informing the
members, staff and agents about its activities. Mr. Krishnan‟s article which was in the
nature of a counter to the respondent‟s study paper was also published in this magazine.
The respondent thereupon requested the LIC to publish his rejoinder to the said article in
its magazine. The LIC refused to accept the request and contended that the magazine was
a house magazine and not put in the market for sale to the general public.
On refusal of the LIC to publish his rejoinder in its magazine, the respondent
filed the petition and contended that refusal to publish his rejoinder violated his
fundamental right under Article 19 (1) (a) of the Constitution of India, 1950. The High
Court directed the LIC to publish the rejoinder of the respondent in the next issue of said
magazine. The LIC appealed against the orders of the High Court to the Supreme Court.
The Supreme Court rejected the appeal of the LIC and held that the LIC being a
“State” within the meaning of Article 12 of the Constitution of India, 1950 must function
in the best interest of the community. The LIC was created under the Life Insurance
Corporation Act, 1956 to carry on Life Insurance business to the best advantages of the
community. The community was therefore entitled to know whether or not this
requirement of the Statute was being satisfied in the functioning of the LIC.
123
Life Insurance Corporation of India v. Prof. Manubhai D. Shah,AIR 1993 SC 171.
43
1.8.13 Article 19(1) (a) Forbids State Monopoly

The Supreme Court made an important innovation and held that the Government had no
Monopoly on electronic media and that a citizen had under Article 19(1)(a), a right to
telecast and broadcast to the viewers/listeners through electronic media, Television and
Radio, any important event. It has been held that a monopoly over broadcasting whether
by Government or anybody else, was inconsistent with free speech right. No monopoly
of this media could be conceived for the simple reason that Article 19(2) did not permit
State monopoly unlike Clause (6) of Article 19 vis-à-vis the right guaranteed by Article
19(1)(g). the Court directed the Central Government to take immediate steps for setting
up to an autonomous public authority to control use of airwaves, which would free the
Doordarshan and Akashvani from the control of the Government and ensure conditions
in which the freedom of speech and expression could be meaningfully and effectively
enjoyed by the citizen.124
1.9 Reasonable Restrictions

All rights and freedoms are born in a society. Their very conceptualization is irrelevant
outside the society. Those who exercise them have therefore to respect the rights and
freedoms of other members of the society. Otherwise there would be state of anarchy and
chaos for all and rights and freedoms to none. Since further it is society wherein the
rights and freedoms are to be exercised and it is the society which protects them, the
orderly survival and safety of the society are prerequisite for their exercise. The interests
of the society are therefore paramount and precedence over the rights and freedoms of
individuals. This is also true to the right of “freedom of speech and expression” and of
the progeny the “freedom of the press” Neither the right of free speech and expression
nor the right to the press freedom has precedence over the other human rights nor does it
have preferential position over them. However they may be weighed against each other
to ascertain the comparative effect on others rights and interest of the society by the
denial or curtailment of one rather than other. Hence the legal measures have to be
evaluated also against their effect on democratic rule.
All societies have found it necessary to curb free speech and expression of the
individuals and freedom of the press to prevent the freedom from degenerating into a
124
Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, AIR 1995 SC 1236.
44
license, to prevent its encroachment on the right of others and to safeguard the interest of
the society as a whole. The well recognized and commonly accepted grounds on the
basis of which the restriction are placed on free speech and press freedom are the need to
safeguard sovereignty, integrity and security of the nation to promote friendly relations
with the foreign states, to maintain public order, to preserve decency and morality, to
uphold the dignity of the court, to protect the privacy of the individual‟s life and to
prevent crime and violence.
The constitutions of some countries enumerate these grounds specifically, and
where the written constitution is supreme as in India, they are exhaustive of the grounds
on which the restrictions can be placed on the freedom of the press. No more may be
added, to them except by a constitutional amendment .Where, as in the U.S.A., the
grounds are not specifically enumerated in the Constitution, it is left to the ordinary
legislation to specify them from time to time, and the courts, if vested with the power of
the judicial review, are upon to pronounce on their validity each time they are
challenged. Where there is no written constitution or where the legislature is supreme, as
in the U.K., these grounds may be added to and amended at the will of the legislature. In
the last case, the press freedom is rendered precarious and depends upon the fancies of
the legislature majority. However, the history and the experience of the U.K. shows that
the parliament there is no jealous in safeguarding the freedom of the press, than in the
countries where the written constitutions incorporate the press freedom and the grounds
which it can be curbed.
The restrictions on the freedom of the press imposed on the grounds enumerated
above must however have a direct and a rational or proximate and not indirect and
remote connection with the concerned ground. The restrictions must also be reasonable.
They should regulate and not completely control or prohibit the press freedom. They
should also not be imposed in excess of the requirement, and should be imposed not to
eliminate or abridge the freedom but to ensure that the freedom is not abused but
exercised with a sense of responsibility. Hence, any direct or indirect attempt to restrict
the freedom of the press by restricting the size or the pages of the newspapers, by
controlling their price or the advertisements published in them, or by regulating the space
devoted to the editorial and advertisement material, or by withholding or denying
newsprint, electricity or other requirements for publishing the newspaper, or by
restricting or obstructing their distribution and circulation, will amount to an illegal
interference with the freedom of the press.
45
Pre-censorship of the newspapers, the compulsion of a heavy security deposit

before starting the newspaper, the requirement of a license or of registration of the
newspaper before it is published the provision for forfeiture of the security deposit or for
sealing and closing the newspaper establishment or threats of prosecution of the press,
apart from those arising under the general law applicable to all, are unwarranted
encroachments on the freedom of the press designed to throttle it . Such measures are not
justified except when there is a clear and present danger of the mischief they are
designed to suppress.
The restrictions which can be imposed on the fundamental rights contained in
Article 19 (1) and as per clause (2) of Article 19 specifies the purposes or grounds in the
interest of which or in relation to which reasonable restrictions can be imposed on the
freedom of speech and expression which include, among others, restrictions in the
interest of (i) the sovereignty and integrity of India; (ii) public order; (iii) morality; etc.125
Supreme Court noticed that reasonable restrictions under Clause (2) of Article 19
can be imposed only by a duly enacted law and not by executive action unsupported by
law.126The reasonableness of a restriction has to be determined in an objective manner
and from the standpoint of the interests of general public and not from the point of view
of the persons upon whom restrictions are imposed or upon abstract consideration. 127The
restrictions on the freedom of press in detail are as follow-
1.9.1 National Interest and Press Freedom

The press may deal with, criticize or comment upon the affairs of the civil as well as the
political society, of the nation. In the process, it may promote or imperil the interests of
either. The matters pertaining to language, culture, religion, customs and traditions are as
much sensitive as are those relating to internal and external security, unity and integrity,
and public order. In the exercise of its freedom, the press may inflame passions, ferment
conflicts and create law and order problems internally as it may create tensions and
misunderstandings between nations, or trigger wars and hostiles between them. The
national interests cover the whole range of subjects from the sovereignty, unity and
security of the state to communal amity, economic stability, and the standards of decency
and morality. No state can permit the use of press for propagating secession, sedition or
125
H. M. Seervai, Constitutional Law of India 703 (2007).
126
Krishnan Kakkanth v. State of Kerala, AIR 1997 SC 128.
127
R. C. Agarwal, Constitutional Development and National Movement of India 423 (2009).
46
disorder, or to oppose war efforts, to demoralize its defense forces or to create

disaffection amongst them. Therefore in almost all democracies freedom of the press is
not absolute.
1.9.2 Security of State

The expression “security of the State” refers to serious and aggravated forms of public
disorder such as rebellion, waging war against the State, insurrection. Thus the security
of the State may be endangered by crimes of violence intended to overthrow the
Government, waging of war and rebellion against the Government, external aggression
or war etc.128
A Speech advocating a change in the system of government cannot be said to
involve a threat to the security of the State so long as the change advocated is not
unconstitutional.129 While the speeches or expressions on the part of the individual,
which may incite or encourage the commission of violent crimes, such as murder would
endanger the security of the State.130
The expression “security of the State” in Article 19(2) does not merely mean as
danger to the security of the entire country. Endangering the security of a part of the
State would involve a threat to the security of the State.
1.9.3 Friendly Relations with Foreign States

This ground was added to Article 19(2) by the Constitution (First Amendment) Act,
1951. The object behind this provision is to prohibit any unrestrained malicious
propaganda, libels against a foreign State in the interests of maintaining friendly relations
with them. The Foreign Relations Act, 1932, provides punishment for libel by Indian
Citizens against foreign dignitaries. Such like laws fall within this expression and are
saved by Article 19(2) discussed in the case of Jagan Nath v. Union of India.131
The Constitution of India, 1950 does not contemplate that freedom of speech and
expression guaranteed under Article 19 (1) (a) which includes a fair criticism of law and
executive actions could be infringed on the ground of remote or speculative ground,
128
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
129
Ram Nandan v. State, AIR 1959 All 101.
130
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
131
AIR 1960 SC 675.
47
otherwise all the guaranteed liberties under the Constitution are liable to be infringed on
one excuse or the other.132
1.9.4 Public Order

This ground was added by the Constitution (First Amendment) Act, 1951,as a
consequence of the decision of the Supreme Court in Romesh Thaper v. State of
Madras,133the Court rejected the contention that public order was covered by the
expression Security of State. The Court held that the concept of “public order” was wider
than “security of the State”. “Public order” was an expression of wide connotation and
signified “that state of tranquility which prevails among the members of political society
as a result of internal regulations enforced by the Government which they have
established”.
The expression “public order” is synonymous with “public peace, safety, and
tranquility.”134 The Supreme Court point out in the case of Kanu Biswas v. State of West
Bengal,135the test for determining whether an act affects law and order or public order is
to see whether the act leads to the disturbance of the current life of the community, or
whether the act affects merely an individual, the tranquility of the society being
undisturbed.
Public order implies absence of violation and an orderly state of affairs in which
citizens can peacefully pursue their normal avocation of life.136 It thus includes public
safety and it means the safety of the community from the external and internal dangers.
Thus creating internal disorder or rebellion would affect public order and safety. But as
per the case of Jawali v. State of Maysoor,137 the Apex Court held that mere criticism of
the government or its policy does not necessarily disturb public order.
As per the case of Madhu Limay138the court observed that anything that disturb
public peace or tranquility disturb public order and therefore communal disturbance or
strikes promoted with the sole object of causing unrest among workmen would be
offences disturbing public order.
132
Baldev Singh Gandhi v. State of Punjab, AIR 2002 SC 1124.
133
AIR 1950 SC 124.
134
Supdt.Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
135
AIR 1972 SC 1656.
136
State of Bhopal v. Arif, AIR 1974 SC 255.
137
AIR 1966 SC 1387.
138
Madhu Limaye v. State of Bihar ,AIR 1971 SC 2486.
48
139
In the case of Babulal Parate the court held that as per Section 144 of the
Code of Criminal Procedure, 1973 empowers Magistrate if he is of the opinion that there
is sufficient ground for immediate prevention by a written order to direct a person or
persons to abstain from certain acts, if he considers that such direction is likely to
prevent or tends to prevent a disturbance of public tranquility or a riot or an affray was
upheld and court ruled that anticipatory action to prevent disorder was within the ambit
of Article 19 (2).
Similarly, in the case of Kedar Nath v. State of Bihar,140 the court held that
Sections 124-A141 and 505142 of the Indian Penal Code, 1860 were upheld as imposing
reasonable restrictions in the interest of Public order in any statement publish in
newspaper by press or otherwise.
The restrictions can be imposed on the freedom of press on utterance or publish
that have the tendency to lead to disorder, but it is necessary that there must be
reasonable and proper nexus or relationship between the restriction on the liberty or
freedom of press and the public order.
1.9.5 Decency or Morality

Restrictions on the freedom of press can be imposed in the interests of decency or
morality. The purpose is to restricting speeches and publications which tend to
undermine public morals. The word “decency” connotes the same as lack of obscenity
and the word “obscenity” is identical with the word indecency.
The Indian Penal Code, 1860 prohibit the sale or distribution or exhibition of
obscene matter or the doing of obscene acts or singing of obscene songs or uttering of
obscene words, etc., in public places.143 Whether the tendency of the matter charged as
139
Babulal Parate v. State of Maharashtra, AIR 1961 SC 884.
140
AIR 1962 SC 955.
141
Infra Note 155
142
Section 505 punishes statement in press or otherwise conducting to publish mischief.
143
The Indian Penal Code, 1860, Section 292 reads: [292. Sale, etc., of obscene books, etc.-
(1) For the purposes of sub-section (2), “a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to
the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any
one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely,
having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.
(2) Whoever—
49
obscene is to deprave and corrupt those whose minds are open to such immoral
influences and into whose hands a publication of this sort may fall. Thus, a matter would
be obscene if it tends to produce lascivious thoughts and arouse lustful desire in the
minds of substantial numbers of that public into whom hands the matter is likely to fall.
It may be noted that no fixed standard can be laid down as to what is moral or indecent.
The concept of morality differs from place to place and from time to time.144
In the case of R.Y. Prabhoo v. P. K. Kunte,145 the Supreme Court has ruled that
the words “decency and morality “in Article 19 (2) could not be restricted to sexual
morality alone and the ordinary dictionary meaning of “decency” indicated that the
action must be in conformity with the current standards of behavior or propriety, etc.
Similarly, in the case of Knuller (Publishing, Printing and Promotion) Ltd. v. Director of
Public Prosecutions,146 the court said that indecency is not confined to sexual indecency
but indeed it is difficult to find any limit short of saying that it includes anything which
an ordinary descent manor woman would find to be shocking, disgusting or revolting.
(a) “sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes
of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any
obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object
whatsoever”, or
(b) “imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or
having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in
any manner put into circulation”, or
(c) “ takes part in or receives profits from any business in the course of which he knows or has reason to
believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased,
kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation”, or
(d) “advertises or makes known by any means whatsoever that any person is engaged or is ready to
engage in any act which is an offence under this section, or that any such obscene object can be procured
from or through any person”, or
(e) “offers or attempts to do any act which is an offence under this section, shall be punished on first
conviction with imprisonment of either description for a term which may extend to two years, and with
fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction,
with imprisonment of either description for a term which may extend to five years, and also with fine
which may extend to five thousand rupees”.
144
Prof. Narendra Kumar, Constitutional Law of India 208 (2004).
145
AIR 1996 SC 1113.
146
(1972) 2 All E.R. 898.
50
1.9.6 Contempt of Court

The right to freedom of speech and expression does not entitle a person to commit
contempt of court. It cannot be held as law that in view of the constitutional protection of
freedom of speech and expression which includes the freedom of press, no one can
proceed with for the contempt of court on the allegation of scandalizing or intending to
scandalize the authority of any court in the case of Radha Mohan Lal v. Rajasthan High
Court.,147 The freedom cannot be equated or confused with a licence to make unfounded
and irresponsible allegations against the judiciary. The law relating to the contempt of
court thus imposes reasonable restrictions on the freedom and is within the ambit of
Article 19 (2).
The expression “contempt of court” is defined in the Contempt of Courts Act,
1971 means may be civil or criminal contempt.148 In the case of D.C. Saxena case,149the
Supreme Court explained the freedom of press would be subjected to Articles 19 (2), 129
and 215. It would not be confounded or confused with licence to make unfounded
allegations against any institution much less the judiciary.
Making scurrilous and scandalizing allegations against the Judge or the Court
willfully and advertently, neglected to perform constitutional duty which he holds scared
which is a wrong-doing. It is necessary to make it clear that liberty of free expression of
the judiciary is not to be confounded with a licence to make unfounded and irresponsible
allegations of corruption against the judiciary. The effect of such imputation is lowering
of the dignity and authority of the court and an affront to the majesty of justice.
1.9.7 Defamation
Since the dawn of civilization the reputation of a person, the esteem in which he is held
in the society, the credit reposed in his intellectual capacity and moral integrity by others
is considered one of the most valuable assets. Love for one‟s own fame and reputation is,
to an individual, oxygen of dignified self-subsistence, and the main spring of the action.
For maintaining the dignity of an individual, promoting his happiness and preserving his
capacity for public good, it is necessary to protect and encourage these human values
which are basic postulate of law of defamation and norms of journalistic ethic relating to
that subject.
147
AIR 2003 SC 1467.
148
Section 2 (a) of the Contempt of Courts Act, 1971.
149
AIR 1971 SC 1132.
51
In India defamation is both civil wrong or tort and criminal offence. The law of
defamation as civil wrong consist a bunch of principles borrowed mostly form common
law of England.
The freedom of the press cannot be used to transgress the law relating to
defamation. The word “defamation” covers both the crime and the tort under Article 19
(2) where it means the entire law of defamation, civil and criminal. Every person
possessed a right to his reputation and therefore nobody can so use his freedom of press
as well as freedom of speech and expression through media as to injure another‟
reputation.
Section 499150 of Indian Penal Code defines criminal defamation, and it
recognizes that there is no distinction between defamatory statement address to the ear or
eyes and thus includes both slander and libel. The Calcutta High Court in the point out
that defamatory matter put in writing is a libel while in spoken words or gesture, it
amounts to slander. In view of the express saving in Article 19 (2), Section 499 of the
Indian Penal Code, 1860 has been held to be not violative of Article 19 (1) (a).151
The Apex Court observed in the case of M. H. Devendrappa v. Karnataka State
Small Industries Development Corporation,152and upheld the dismissal from service of
an employee on the ground of making allegations about mismanagement against the head
of his organization and issuing press statements of political nature. His conduct was held
to be detrimental to interests and prestige of the organization.
150
The Indian Penal Code, 1860. Section 499 reads: Defamation.—“Whoever, by words either spoken or
intended to be read, or by signs or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason to believe that such imputation
will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that
person”
. Explanation 1.—“It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to the
feelings of his family or other near relatives.”
Explanation 2.—“It may amount to defamation to make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3.—“An imputation in the form of an alternative or expressed ironically, may amount to
defamation.
Explanation 4.—“No imputation is said to harm a person’s reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers
the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or
causes it to be believed that the body of that person is in a loathsome state, or in a state generally
considered as disgraceful”.
151
Dr. Suresh Chandra v. Panbit Goala AIR 1958 Cal 176
152
AIR 1998 SC 1064.
52
1.9.8 Incitement to an Offence

This ground was added to Article 19 (2) by the Constitution (First Amendment) Act,
1951 and the Allahabad High Court in the case of Dr. Ram Manohar Lohia v. Supdt.
Central Prison, Fatehgarh,153 held that “incitement to an offence” did not refer to
incitement break a law and thus an incitement to a breach of every civil law is not
necessarily contemplated by Article 19 (2).
1.9.9 Sovereignty and Integrity of India

This ground was added to Article 19 (2)154 and the purpose of this ground is to guard the
freedom of speech and expression and liberty of press from being used to assail the
sovereignty and territorial integrity of the country.
1.9.10 Sedition
The word “Sedition” is not mentioned in clause (2) of the Article 19 but as per Indian
Penal Code, 1860 which defines the offence of sedition and it means whoever by words
either spoken or written, or by signs or by visible representation or otherwise, brings or
attempts to bring into hatred or contempt or excites or attempts to excite disaffection
towards the government established by law in India shall be considered to be the offence
of sedition.155
1.9.11. Restriction on the Press as a Business

The press today is also run as a business, and as a business it can be subjected to legal
restrictions as any other business. These restrictions however have to be general in nature
that is, applicable to all businesses and not aimed directly or indirectly, exclusively at the
press. The restrictions should also not directly impede the freedom of the press.
The business of the press however cannot claim exemption or special concession
from the general civil and criminal law, labour legislation, taxation, import and export
restrictions, restrictions on monopolies and trade practices, municipal laws relating to
153
AIR 1955 All 377.
154
By the Constitution (Sixteenth Amendment) Act, 1963.
155
The Indian Penal Code, 1860, section 124-A reads: .—“Whoever, by words, either spoken or written,
or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards, the Government established by law
in India], shall be punished with imprisonment for life to which fine may be added, or with imprisonment
which may extend to three years, to which fine may be added, or with fine”.
53
buildings and licenses, factory legislation etc. the constitutions of the countries like
countries India enable the state to place restrictions, on specified grounds, on carrying on
any trade, business, avocation or profession, and the restrictions so imposed generally on
all avocations and businesses apply equally to the media business. The constitutions like
those of the U.S.A. do not enumerate the grounds on which the restrictions may be
placed on carrying n the business. The judiciary there was however evolved restrictions
on the business under the doctrines of the „police‟ and „commerce‟ powers and they
apply equally to the business in media. As stated earlier the rationality and the
reasonableness of the restrictions have however have to be examined by the courts in
both the systems in the light of their direct impact on the freedom of the media.
1.10 Conclusion
Freedom of press laid at the foundation of all democratic organisations, for without free
political discussion no public education, so essential for the process of proper
government is possible. A freedom of such amplitude might involve risks of abuse. Bu
the framers of the Constitution may well have reflected with Madison, who was the
leading spirit in the preparation of the first amendment of the Federal Constitution that it
is better to leave a few of its noxious the vigour of those yielding the proper fruits.156
Each one of the fundamental freedoms guaranteed by the constitution of India is hedged
by many restrictions. They are not absolute. This led to the criticism that Indian freedom
is a myth and not reality for what has been given with one hand has been taken away
with the other.
This criticism is unfair and for fundamental rights can nowhere be absolute. For
logically, one can be absolutely free only when all others are absolute, slaves Individual
freedom to be real must be social and hence must be limited. There is a difference in the
scheme of limitations on fundamental rights in the U.S. constitution and in the
constitution of India. In the U.S.A. the restrictions are not mentioned in the constitution
itself. This is left to judicial interpretations. In India on the other hand, the restrictions
are mentioned in the constitution itself. It is not left to the vagaries of judicial
interpretation.
On the whole fundamental rights everywhere are restricted or, limited. As Mr.
Justice Mukherji observed in A. K. Gopalan v. State of Madras case “There cannot be
156
Mahendra P. Singh, Constitution of India 106 (2007).
54
any such thing as absolute uncontrolled liberty wholly freed from restraints.”157
Freedom refers to the state of liberty, or right and privileged to speak and act according
to one‟s own will. Press and media includes print, electronic and online are the most
important medium of expressing opinion of the people in a democratic country that
justifies one‟s individual right to speech and expression, a coveted right enshrined in the
Indian Constitution and in the Constitution of other countries on the globe.
In a democracy, freedom of speech and expression opens up channels of free
discussion of issues. Freedom of press plays a crucial role in the formation of public
opinion on social, political and economic matters.158Freedom of speech and expression is
a natural right which a human being acquires on birth and freedom of press is a part and
parcel of this right. The words “freedom of speech and expression” have to be broadly
construed to include the freedom to circulate one‟s views by words of mouth or in
writing or through press. Once it is conceded and it cannot indeed be disputed that
freedom of press includes freedom of circulation of ideas, there can be no doubt that the
right extends to the citizen being permitted to use the media to answer the criticism
levelled against the views propagated by him.
157
Available at: http://www.importantindia.com/2007/right-to-freedom-in-indian-constitution/ (visited
on 17 July, 2016).
158
M P Jain, Indian Constitutional Law 986 (2008).
55

Freedom of Press Andconstitution of India

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Freedom of Press Andconstitution of India

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CHAPTER 1

1.2. Jurisprudential Concept of Freedom

1.3 Freedom of Expression

1.4 Evolution of the Concept

1.5 Significance of Freedom of Expression

1.5.1 Furtherance of Democracy

1.5.2 Advocacy of Minority Rights

1.6 Meaning of Freedom of Press

1.7 Importance of Free Press

deeply rooted corruption in any system can make or unmake a government in a

It is generally observed that previous restraint and censorship is undesirable and

1.8 Freedom of Press: Ambit and Scope

honorable Supreme Court70. Article19(1) (a)71 of the Indian Constitution guarantees to

1.8.1 No Pre-censorship on Press

1.8.2 No Pre-stoppage of Publication on the Matter of Public

1.8.3 Right to Access to the Source of Information

1.8.4 Freedom of Circulation

1.8 .5 Freedom in the Volume of Circulation

1.8.6 No Excessive Taxes

1.8.7 No Indirect Attack on Press

1.8.8 Freedom of Employment

1.8.9 Commercial Advertisement Included

1.8.10 Right to know and obtain Information

vegetarian or non-vegetarian origin.111 A limited exception has, however, been provided

1.8.11 Right of the Voters to Know the Antecedents of the Candidates at

1.8.12 Right to Reply

1.8.13 Article 19(1) (a) Forbids State Monopoly

1.9 Reasonable Restrictions

Pre-censorship of the newspapers, the compulsion of a heavy security deposit

1.9.1 National Interest and Press Freedom

disorder, or to oppose war efforts, to demoralize its defense forces or to create

1.9.2 Security of State

1.9.3 Friendly Relations with Foreign States

1.9.4 Public Order

1.9.5 Decency or Morality

1.9.6 Contempt of Court

1.9.8 Incitement to an Offence

1.9.9 Sovereignty and Integrity of India

1.9.11. Restriction on the Press as a Business

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