Table of Contents
Introduction
Freedom Of Speech and Expression: Article 19(1)(a) of the Constitution of India provides for each and every citizen the right to freedom of speech and expression. The entire theory behind this Article is laid down in the soul and heart of the constitution, i.e., the Preamble, where a severe and eminent resolve is made to secure all citizens of the country, liberty of thought, expression, belief, faith, and worship. A democratic society can exist only when there are fair and free exchange and dissemination of ideas. Although freedom of speech and expression does not necessarily mean that a person has the liberty to blurt out whatever strikes their thought process. Such speech should be within the permissible limits as under Article 19(2) in the form of reasonable restrictions.
Elements of Freedom of Speech and Expression
These are the following essential elements of the freedom of Speech and Expression:
- This right is solely available to a citizen of India.
- The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions about any kind of issue through any kind of medium, such as by words of mouth, by writing, by printing, through picturization or a movie.
- This right is not absolute. It allows the Government of India to draft and frame laws that can impose reasonable restrictions in cases involving the sovereignty, security and integrity of the Nation or friendly relations with foreign nations.
- Such a restriction on the freedom of speech of any citizen may be garnered equally much by an action of the State as by its inaction. Thus, if failure is found on the part of the State to guarantee to its citizens the fundamental right to freedom of speech and expression would be a violation of Article 19(1)(a).
Importance of Freedom of Speech and Expression
Freedom of Speech and Expression acts as a defensive and protective wall of both the citizens and the Government. Freedom of speech and expression is essential as it opens up many free discussion channels of issues and objectives,and it forms a public opinion on social, economic & political matters. It ensures the freedom of propagation and interchangeability of ideas, spreading of information which would eventually help in the formation of one’s opinion & viewpoint & debates on matters of public concern.
Freedom of Speech and Expression of Press
In Romesh Thapar v/s State of Madras,[1] Patanjali Shastri CJ, observed that “Freedom of speech of the press lay at the foundation of all democratic organization. Without free political discussion, no public education, essential for the proper functioning of the process of popular government, will be possible.” In this case, entry and circulation of the English journal “Cross Road”, both printed and published in Bombay, was prohibited by the Government of Madras. It was held to be violative of the freedom of speech and expression, as a matter of fact, “without liberty of circulation, the publication would be of little value”.
Freedom of the Press is explicitly not mentioned anywhere in the Constitution of India. It is not a statute. Although, it is laid down under Article 19 of the Indian Constitution. Freedom of the Press makes one of the four pillars of democracy. It involves free debates, discussions and information dissemination, which might not be possible in systems other than a democracy. It has been upheld by the Supreme Court of India in many cases that the freedom of the press is a part of the Freedom of Speech and Expression, covered under Article 19(1)(a) of the Constitution of India, the reason for this is that the freedom of the press is an aspect of freedom of speech and expression. Therefore, it has been rightly explained that the press has to stick to the limitations imposed upon them by the Constitution under Article 19(2).
In Indian Express Newspapers (Bombay) Private Ltd. v. Union of India[2], it was laid down, that the term “freedom of press” is contained in the form of its essence within Article 19(1)(a) of the Constitution of India, and hence, there cannot be any interference with the freedom of press which involves the public interest and security. Therefore, imposing censorship on journals, newspapers, media channels, etc., amounts to restricting the press’ liberty and freedom. It was also held that the press plays a very essential and significant role in a democratic country. The courts have the duty to uphold freedom of press and nullify/invalidate all laws and administrative actions that hampers and abridges press freedom.
Freedom of Press in the United Kingdom (UK)
The Parliament is the sovereign in the United Kingdom. Unlike the U.S., India or other states, U.K. does not possess any guaranteed rights. The freedom of press is also well accepted and respected in the U.K. The citizens have the freedom to do anything up to the extent that it does not violate the rule of common law or statute law.
Freedom of Press in the United States of America (USA)
Freedom of Press is recognized in the American Constitution. In the beginning, the freedom of press was not expressly provided in the U.S. Constitution. The freedom of press was inserted in the Constitution after the First Amendment. Though, the Amendment prohibited the U.S. Congress from making laws that infringe, hinders and pester the freedom of press. The First Amendment of the U.S. Constitution was an effect of the Virginian Declaration of Rights.
Scope of Freedom of Press Under Article 19(1)(A)
Freedom to spread and receive information
this was made clear in the case of Romesh Thapar v State of Madras,[3]the major difference between freedom of speech and expression of that of an individual and that of the press is, the latter can disseminate and publicize its opinions to the masses. Similarly, if the press is not well aware of the information, content, issues, theories, details, facts, etc., then it will not play its part to full justice.
Freedom to criticize
The press enjoys the liberty to criticize the government, its officials, its policies, its statements, etc., but it cannot take exploit and misuse this right as it is subject to various limitations and cannot provoke the public against the government or cannot abet riots, rebels, or the mutiny of the state or the government.
Freedom to attend and report legislative proceedings
Article 361 of the Indian Constitution equips the press with the right of publishing a kosher report of the parliamentary proceedings. However, it is important to note that there should be no mala fide intention behind such publications.
Freedom to act as an advertising platform
held in the case of Tata Press v Mahanagar Telephone Nigam,[4] that SC incorporated the right to an advertisement as a vital part of the right to freedom of expression. Advertising benefits and enriches the press to earn income.
Freedom to report court proceeding
this right is not absolute as the entire procedure depends on the choices and suitability of the interviewee; the interview will only take place on the consent of the interviewee; the interview shall stop when the interviewee wants it to be; the interviewer cannot force the interviewee to answer any question against his/her will.
Limitations of the Press’ Freedom
A good percentage of laws and rules comes into existence along with exceptions. Freedom of press entertains its powers from Article 19(1)(a) of the Indian Constitution, but the limitations of the same are imposed under Article 19(2) of the Indian Constitution. Some of the limitations are:
- Sovereignty and Integrity of the state – the 16thAmendment, also known as the ‘Anti-Secession Bill’, amended Article 19(2) for the final time. The terms, ‘sovereignty and integrity’ were added and one more exception i.e., to safeguard the sovereignty and integrity of the Nation was inserted. In N.T Rama Rao vs. Telugu Desam(1995), it was observed that any legislation which is to be undertaken regarding 19(2) has to be comprehensive and effective enough to keep a check on any and all kinds of infringement such as burning of the Constitution or the refusal to take an oath of loyalty or the raising of flags in any provoking way etc. It is essential for national integrity by rooting out any kind of anti-national sentiments that are capable of causing any sort of violence.
- Security of the state– The 7th Schedule of the Constitution of India contains the entries regarding Security of State in the Union List (List I Entry 9) and the Concurrent List (List III Entry 3) respectively. Security of the State bears a diverse and wide meaning to it. “Security of State” refers to grave, major and aggravated forms of public disorder and not ordinary law and order problem and public safety. The speeches and expressions which invigorate violent crimes falls under the ambit of security of the State.[5]In the case, State of Bihar v. Shailabala Devi (Smt), it was held that it is different from ordinary breaches of ‘public safety’ or ‘public order’ which may not involve any danger the State itself. Thus, security of the State is jeopardized by crimes of violence intended to overpower and overthrow, or rebel against the government, external aggression etc. However, the advocacy of revolutionary socialism as a magic bullet for the present-day evils cannot be restricted under the present ground, unless the use of violence is suggested.[6]
- Public order– This was added as an exception by the 1st Constitutional in 1951 Amendment. It signifies the absence of disorder in contradiction to national outbreaks, armed rebellion, etc. affecting the security of the State. In the case of The Superintendent of Central Prison vs. Ram Manohar Lohia(1960),[7] Section 3 of the U.P. Special Powers Act, 1932 was declared invalid. The same happened because this section punished a person, even if he provoked a single person not to pay or defer the payment of government. Moreover, because there was no direct link found between the speech and public order.
- Contempt of court– It is defined in Section 2 of the Contempt of Courts Act, 1971. Contempt of Court involves both Civil and Criminal attempt. The power of the courts to penalize/punish for contempt is given in Article 129 to the Supreme Court and Article 215 to the High Courts. In the case of, Justice C.S. Karnan vs The Honourable Supreme Court of India(2017),[8] it was unanimously held by a seven-judge bench that even a judge could be punished for Contempt of the Court especially for voicing any kind of allegation against the judges of the Constitutional Courts.
- Decency and Morality – Obscenity or indecency is stated under section 292 – 296 of the Indian Penal Code. In the famous case of Ranjit.D.Udeshi vs. the State of Maharashtra(1964),[9] applied the Hicklins test to determine obscenity since it does not offend Article 19(1) (a) of the Constitution.
- Defamation– Defamation refers to any oral or written statement made by a person which damages the reputation of another person. As per Black’s Law Dictionary, defamation means “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. If the statement made, in written or any permanent form, such as caricatures, pictures, slogans etc. and if so, is published, it is “libel”. If the defamatory statement is spoken, then it is “slander”. In India, there is no such distinction of the statement made whether orally (slander) or in permanent form (libel). Both are offences as civil wrong under the Law of Torts and criminal wrong under Section 499 of Indian Penal Code, 1860 where the punishment is extended up to simple imprisonment of one year or fine of one thousand rupees or both under the code.
- Incitement to an offence and Sedition – ‘Incitement to an offence’was added by the 1st Constitutional Amendment as well. In State of Bihar v Shailabala Devi,[10] it was held by the Apex Court, that any communication which leads to incitement of any criminal offence/act can be restricted and any order for such restriction and ban will fall within the purview of reasonable restrictions envisaged in Article 19(2) of constitution. Sec. 124-A of the Indian Penal Code, 1860, defines sedition as: “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…”[11]In Kedar Nath v. State of Bihar,[12] the Supreme Court held that Sec. 124-A was limited to acts that involve an intention to cause disorder or disturbance of law and order or incitement to violence and was not violative of Art. 19(1)(a) when read along with Art. 19(2).
Current Scenario of Freedom of Press in India
There are several instances where the freedom of press has been suppressed by the legislature. In Sakal Papers v/s Union of India,[13] the Daily Newspapers (Price and Page) Order, 1960, fixed and finalized the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v/s Union of India,[14] the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) of the Constitution of India and not to be reasonable restriction under Article 19(2). The Court rejected the plea of the Government that it would help small newspapers to grow.
Siddique Kappan, a Delhi-based, Malayalam-language journalist and secretary of Union’s Delhi Unit, along with three others was arrested in Mathura, UP. The UP Police alleged that they had received information that some “suspicious people were on their way to Hathras from Delhi”. The Police statement suggests that a laptop, their mobile phones and some literary texts which could have “affected law and order were seized”. The journalist union demanded Kappan’s earliest release as he was only carrying out his duty as a reporter. Moreover, the UP police alleged that Kappan was related to PFI, the PFI claimed that the UP Government in order to shy away from its deteriorated law and order has been creating bizarre conspiracy theories.
In Bhima Koregaon case, the accused, Sudha Bharadwaj, who was denigrated by Goswami on his channel, ironically was locked in Taloja Jail with him. The Supreme Court refused to entertain the plea for interim bail for Bharadwaj, even when no evidence was found against her. Her plea for interim bail to get her medical issues (diabetes and other co-morbidities for COVID-19) diagnosed was not considered by the Supreme Court justifiably. On the other hand, Arnab Goswami’s civil liberties have been given more priorities, even after he continually discredits and damages people’s reputations by calling them anti-nationals and terrorists and brainwashes people into believing so. Henceforth, it is immoral and unethical that the Supreme Court took his case on priority basis.
Recently, the arrest of Munawar Faruqui has hit the head on the nail. The Government has made sure to instill the terror and fear amongst the public of going against the Government. The government’s mindset of unsportingly dealing with mere religious jokes proves some serious oiling required. A mere anecdote turned into a comic has outraged the Government, imagine something similar happening on a large scare by a mass of people. Section 295(A) Indian Penal Code, 1860, is invoked against someone who has been accused of hurting religious sentiments. It is an archaic and draconian law and was one of the parting gifts of the British. Such a law holds no place in a free, modern society.
It is not just the Government that is menacing the Freedom of Speech and Expression of the Press, but the Press as well. Promulgation of false and negative information, the spreading of hate speeches against a particular community or caste, or religion can tarnish the feelings of harmony, peace, and brotherhood in the country. This also goes against the very ethics of the freedom of the press which has been guaranteed by the Constitution makers. There have been instances of the media going as far to the extent of defaming a person without proper proof as seen in numerous cases. Today, if the truth is exposed, it is denied and then silenced by the evils of threat, money, power, etc. The current situation of free speech in India is diminishing as people are more inclined towards accepting what is wrong and is against what is actually right.
Landmark/Essential Judgments
Indian Express v. Union of India
The SC held that the government of India has the power to impose taxes affecting the publication of newspapers and classify the industries into small, medium, and large have rational link of fulfilling the objective of taxation and is not arbitrary. It is the court’s a duty to uphold and maintain the freedom of the press and invalidate and nullify all laws and administrative actions that bridge that freedom.[15]
Union of India v. Assn. for Democratic Reforms
It was held by the Supreme Court of India 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 incorporates the right to disseminate and receive information which includes freedom to hold opinions”.[16]
Bennett Coleman and Co. V. Union of India
it was held that petition was maintainable[17]. Being a company does not restrict the claim of relief for violation of rights of shareholders and editorial staff. Similarly, like in the case of Sakal Papers Ltd. v. Union of India,[18]the decision was struck holding it violative of Article 19 (1) (a) and Article 19 (2). The grounds were considered not reasonable.
Odyssey Communications (P) Ltd .v. Lok Vidayan Sanghatana
SC held that the right of a citizen to exhibit films on the State channel “ Doordarshan is part of the fundamental right guaranteed under Article 19(1)(a). Here, the petitioners challenged the exhibition of a serial titled “Honi Anhoni” airing on Doordarshan on grounds that it encouraged superstitious and blind faith amongst viewers. The petition was dismissed as the petitioner failed to provide evidence of prejudice to the public.[19]
Maneka Gandhi v. Union of India
Supreme Court considered whether Article 19(1)(a) of Indian Constitution was confined to Indian territory and held that the freedom of speech and expression is not confined to National boundaries.[20]
Brij Bhushan v. the State of Delhi
The validity of order imposing pre-censorship on an English Weekly of Delhi, which directed the editor and publisher of a newspaper to submit for scrutiny, before the publication, all communal matters, all the matters and news, information and views about Pakistan, including photographs, and cartoons, on the ground that it was a restriction on the liberty of the press, was denied by court.[21]
Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd
SC held that a commercial advertisement or speech is also a part of the freedom of speech and expression, which would be restricted only within the limits of Article 19(2). Supreme Court held that advertising, which is no more than a commercial transaction, is nothing but mere dissemination of information regarding the product advertised to benefit the public.[22]
Conclusion
The more one studies and notices these errors in-depth, the more they realize how exploitative the country has become. There is no doubt that the Freedom of Speech and Expression needs to be preserved, starting from the earliest in the name of Public Interest. India’s rank in the World Press Freedom Index by Reporters Without Borders is 140th out of 180 countries, and it is perceptible that this rank is going down every year. The legislation needs to work hand-in-hand with the judiciary for the welfare of its subjects.
- [1] 1950 AIR 124; 1950 SCR 594
- [2] (1985) 1 SCC 641
- [3] 1950 AIR 124, 1950 SCR 594
- [4] 1995 AIR 2438, 1995 SCC (5) 139
- [5] Ibid., p. 2440
- [6] State of Bihar v. Shailabala Devi (Smt.), AIR 1952 SC 329
- [7] AIR 1955 All 193, 1955 CriLJ 623
- [8] Suo Motu Contempt Petition (Civil) No. 1 Of 2017
- [9] 1965 AIR 881, 1965 SCR (1) 65
- [10] 1952 AIR 329, 1952 SCR 654
- [11] Indian Penal Code, 1860
- [12] AIR 1962 SC 955
- [13] AIR 1962 SC 305
- [14] AIR 1973 SC 106; (1972) 2 SCC 788
- [15] (1985) 1 S.C.C. 641 (India)
- [16] A.I.R. 2001 Delhi 126 (India)
- [17] A.I.R. 1973 S.C. 106 (India).
- [18] A.I.R. 1962 S.C. 305 (India)
- [19] AIR 1988 SC 1642
- [20] AIR 1978 SC 597
- [21] AIR 1950 SC 129
- [22] 1995 AIR 2438, 1995 SCC (5) 139
This article is authored by Tanisha Gautam, Student at Institute of Law, Nirma University, Ahmedabad.
