By Shashank Tyagi
The press which is called media nowadays obtains its powers from the Constitution. Freedom of speech and expression is an integral part of democracy. A democratic country in the world cannot deny freedom of speech and expression. If we focus on the Indian Constitution, Article 19(1)(a) is freedom of speech and expression from where media obtains its powers. As everyone has a right of speech and expression so does press have, India has witnessed an explosion of both print and digital media. Press is meant for the society, it works in such a way to bring truth in front of public. Media is considered as the eye, ear and mouth of the public. Nowadays media is distributed into various channels which have become rivals somehow, and are fighting for TRPs, as a result of which it has started crossing the lines which it is not supposed to cross. Nowadays media has entered into new fields in such a way that it hampers and digs into many personal lives.
Regulating freedom of expression
Media of India consist of several different types of communications media: television, radio, cinema, newspapers, magazines, and Internet-based Web sites. The Indian media was initiated since the late 18th century with print media started in 1780, radio broadcasting initiated in 1927, and the screening of Auguste and Louis Lumière moving pictures in Bombay initiated during the July of 1895 — is among the oldest and largest media of the world. Indian media—private media in particular—has been free and independent throughout most of its history. The period of emergency (1975-1977), declared by Prime Minister Indira Gandhi, was the brief period when India’s media was faced with potential government retribution.
The freedom of press is nowhere defined in the Constitution but it is implicit in Art 19(1)(a) which is essential for political liberty and proper functioning of democracy. Before Independence, there was no constitutional or statutory provision to protect the freedom of press. As observed by the Privy Council in Channing Arnold v. King Emperor: The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.
The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression. Freedom of the press has been included as part of freedom of speech and expression under Article 19 of the Universal Declaration of Human Rights. The heart of the Article 19 says: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
In a landmark judgment of the case Maneka Gandhi v. Union of India, the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.
In Indian Express Newspaper v. Union of India (1985) the court observed the expression “freedom of the press has not been used in Art 19 but it is comprehended (to understand completely) with Art 19(1)(a).” Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, “freedom of press” has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.
Pre-Censorship Invalid
In Ramesh Thapper v. State of Madras (1950) law banning entry and circulation of journal in a state was held to be invalid. The journal Cross Road printed and published at Bombay was banned by Madras Govt. The Court held that publication includes circulation without interruption.
In Express Newspapers v. Union of India (1958) the S.C. held that a law which imposes pre-censorship or curtails circulation or prevents newspapers from being stated or require the Govt. to seek Govt. aid in order to survive was violative of Art 19(1)(a).
In Sakal Papers Ltd. v. Union of India (1962) the Supreme Court held that the Daily Newspaper (Price and Control) Order which fixed a minimum price and number of pages was unconstitutional.
Prior-Restraint on Publication
In R. Rajagopal v. State of T.N. (1994) (Auto Shankar Case) the Supreme Court held that the Govt. has no authority in law to impose a prior-restraint upon publication of defamatory material against its officials.
Although the freedom of the press is implied in the freedom of speech, it does not stand on a higher footing than the freedom of speech and expression of a citizen, and under the same restrictions as under Art 19(2).
Abuse of Freedom of Press
In M.P. Lohia v. State of W.B. & Ors. AIR 2005 S.C. 790, also known as the Trial by Media Case, a young girl committed suicide at her parents’ house. Allegations of demand of dowry were made by her parents. Her in-laws took plea that she was suffering from mental illness. Matter was sub-judiced and both parties made attempt to create documents and create evidence to support their contentions. Proceedings for grant of anticipatory bail were pending. Even then an article published in a magazine called Saga titled “Doomed by Dowry”, written by one Kakoli Poddar based on her interview of the family of the deceased, gave a version of the tragedy and extensively quoted the father of the deceased as to his version of the case. The facts narrated therein were all materials that may be used in the forthcoming trial in that case. This type of articles appearing in the media would certainly interfere with administration of Justice. This practice was deprecated and the publisher, editor and journalist who were responsible for the said article were cautioned against indulging in such trial by media when the issue is sub judiced.
In Rajendra Sail v. M.P. High Court Bar Association & Ors. (2005) appellant published judgment of an appeal in newspaper of the acquittal rendered by the Division Bench (D.B.) of High Court, described one of the judges of the Bench as pre-judicial and having accepted bribe and also said that judge had purchased some property out of that income. The H.C. sought unconditional apology and pronounced six month simple imprisonment but Supreme Court reduced it to one week with warning to be more careful in future.
In Sidhartha Vashishtha @ Manu Sharma v. State (NCT) Delhi AIR 2010 S.C. held that trial by media should be avoided particularly at the stage when subject is entitled to constitutional protection. Every attempt should be made by print/electronic media to ensure that the distinction between trial by media and informative media should always be maintained.
In R.K. Anand v. Registrar, Delhi H.C. (2009) 8 SCC 106 the S.C. held that sting operation is constitutional.
The Court further held that an adult willing to engage in sexual relations outside a marital setting is not an offence.
Practical Constraints and Curtailments
Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, “freedom of press” has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.
According to the estimates of Reporters Without Borders, India ranks 120th worldwide in press freedom index (press freedom index for India is 39.33 for 2007). The Indian Constitution, while not mentioning the word “press”, provides for “the right to freedom of speech and expression” (Article 19(1)(a)). However this right is subject to restrictions under sub-clause (2), whereby this freedom can be restricted for reasons of “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court, defamation, or incitement to an offence”. Laws such as the Official Secrets Act and Prevention of Terrorism Act (POTA) have been used to limit press freedom. Under POTA, a person could be detained for up to six months before the police were required to bring charges on allegations for terrorism-related offences. POTA was repealed in 2004, but was replaced by amendments to UAPA. The Official Secrets Act 1923 remains in effect.
In the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government. Organizations like Tehelka and NDTV have been particularly influential, e.g. in bringing about the resignation of powerful Haryana minister Venod Sharma. In addition, laws like Prasar Bharati Act passed in recent years contribute significantly to reducing the control of the press by the government.
Reasonable Restrictions
Art 19(1)(a) defines that all citizens shall have the right to freedom of speech and expression. But this right is subject to eight limitations imposed under Art 19(2) which are:
- Security of the State
- Friendly relations with foreign states
- Public order
- Decency and Morality
- Contempt of Court
- Defamation
- Incitement of offence
- Integrity and Sovereignty of India
Restriction no. 2, 3, 7 was inserted by 1st Constitutional (Amendment) Act 1951, and no. 8 was inserted by 16th Constitutional (Amendment) Act 1963.
Freedom of speech and expression means the right to express one’s own opinions freely by words of mouth, writing, printing, pictures or any other mode which includes gesture, signs and the like. It includes publication also which inherent freedom of press. The liberty of circulation is vested in liberty of publication.
Other Exceptions
There are other exceptions to this freedom and they do include restrictions on the grounds of national security. Other exceptions can include restrictions on the grounds of public safety, the protection of health and morals, and restrictions to prevent crime and disorder. The disclosure of information that has been received in confidence is another exception. The main exceptions to the rights of freedom of speech and expression are that the expressions do not endanger or harm others.
Rights in Action
Although no one wants to take away another person’s right to freedom of speech it is wise to use this freedom responsibly. A recent freedom of expression controversy occurred when a Danish newspaper printed cartoons on the prophet Mohammed. The Muslim community deemed these cartoons to be offensive and irresponsible. Extreme Muslims went further by burning embassies and causing the deaths of others. The editor of the Danish newspaper expressed regret over the consequences of the cartoons but would not apologise as they felt that they had a right to publish the cartoons.
Responsible Use of Expression
The freedom to communicate is a right, as is the freedom to pass and receive information. If the Danish newspaper had been forbidden to print the cartoons it could be seen as censorship of the press. If the editor of the newspaper had not printed the cartoon that could have been viewed as self-censorship, and where do the boundaries end in giving information? However, if they had acted in a more responsible manner it may have avoided the deaths and violence that occurred. Freedom of speech and expression is important but there are consequences if these rights are not used in a responsible manner.
Freedom of speech and expression are fundamental within our society. But, with rights come responsibilities and obligations. Using these rights responsibly is a necessity. This does not necessarily mean censorship but there are consequences that should be considered when using the rights of freedom of speech and expression.
Conclusion
In every part of the world (particularly in democratic countries) we can observe that media is enjoying its powers which it has obtained from the virtue of freedom of speech and expressions. But the freedom of Press does not contain the right to press comparable to other countries. The two strong pillars of democracy that are freedom of speech and expression and personal liberty have come face to face which is need to be checked. The media should work into its limits so that the privacy of individuals can be maintained. Right to freedom of speech and expressions are guaranteed by Democracy no doubt it include freedom of press but this freedom is not absolute and it should not be, because this way the right to privacy is guaranteed to individuals. And it’s not only about privacy the question of harmonizing the social conflict etc also arises. As the press is the important means of spreading news and affecting the social life as well as the individual life of a person at a greater extent, so to protect the cultural, religious, unity, integrity and avoid any conflict it is important that the press should propagate the vast cultural heritage of world.