Constitutional Foundation of
Media Freedom
Dr. Madabhushi Sridhar
NALSAR University of Law, Hyderabad.
Democratic Right
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Freedom of press is part of freedom of
speech and expression as available to every
citizen, under Constitutional proclamation and
protection
Preamble mentions ‘Liberty of thought,
expression, belief, faith and worship
Freedom of expression is practical application
of individual freedom of thought
Collective Right
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Freedom of thought is personal, freedom of
expression is collective, which becomes more
and more expressive with new months of
their diffusion
Life, liberty and pursuit of happiness are
three important objectives of law, democracy
and social life. It was part of Declaration of
American Independence.
Constitutional Right
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It is a right guaranteed by Const. & placed
under Part III as FR.
It is not legal right, a law has not given thus,
law cannot take it back.
Even Constituional right can be withdrawn.
But this right cannot be, because it is
fundamental in democracy and part of basic
structure of the Constitution.
Article 19
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1) All citizens shall have the right
a) to freedom of speech and expression
b) to assemble peacefully and without
arms
c) to form associations or unions
d) to move freely throughout the
territory
e) to reside and settle in any part of
territory
Restrictions
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(2) State can make law to impose reasonable
restrictions in the interests of
Sovereignty and integrity of India
Security of State
Friendly Relations with foreign States
Public Order, Decency or morality,
Contempt of Court, Defamation, Incitement
to an offence.
Other Constitutions
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First and 14th Amendments to US:
Congress shall make no law...abridging
the freedom of speech or press,
religion, assembly, petition for redress
of grievance
Common Law of England
Section 40(6)(1) of Const of Eire 1937
Section 18(1)(e)(f)(g): Srilanka
Const.1972
Article 50 & 51 of USSR Const 1977
International Conventions
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Art. 13, 19, 20, 23, 29 of UDHR 1948
Art 22 of International Covenant of Civil
and Political Rights 1966
Art. 11 of the European Convention on
Human Rights, 1950
Art 6,12 of International Covenant on
Economic, Social and Cultural Rights,
1966
Meaning
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Article 10 of ECHR provides that
Everyone has the right to freedom of
expression. This right shall include
freedom to hold opinion and
to receive and impart information and
ideas without interference by the public
authority regardless of the frontiers.
Amendments to Art 19
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First Amendment 1951
Sixteenth Amendment 1963
Forty-fourth Amendment, 1978
Civil Liberties are Fundamental rights
provided under Art 19, 21, and 22
Deprivation of Personal Liberty is
violation of Article 21 and 22.
Personal Liberty
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Art 19 deal with important attributes of
personal liberty, life and personal liberty are
sought to be protected under Art 21, which
include varieties of rights.
Other legal rights which may be on par with
civil rights are: right to strike, freedom of
contract, right to franchise and right to
contest for legislative election.
Citizens and persons
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Rights under Art 19(1) are basic and
available only for citizens and not all
persons, thus foreigners are excluded
Citizen gets legal capacity to exercise
the rights, entitled to enjoy. State is
restricted to exercise its authority in
making law or taking any action curbing
these freedoms unreasonably.
Meaning
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right to express one’s own convictions and
opinions freely without any interference from
any authority or person
Right to receive and express ideas and
information and the secrecy of the private
communication (Halsbury’s Laws of England)
Usha Uthup v West Bengal. 1984
Purpose
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Helps an individual to attain self fulfillment
Assists in the discovery of truth
Strengthens capacity of an individual in
participating in decision making process
Provides mechanism by which it is possible to
establish a reasonable balance between
stability and social change.
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Need of Democracy
To take part in all matters of governing
and all spheres of life
Governed need to form a wise and
intelligent judgment and create an
enlightened public opinion
Public discussion assumes the nature of
public duty. In democracy it is not
individual right but right of community
to hear and informed.
Freedom of Media
is not higher than ordinary citizen
guarantees absence of interference
independent editorial authority
contents of newspaper are left to choice of editor. FoP does
not exist where Govt dictates its views to newspapers.
Freedom lies both in content, circulation & equitable
distribution of newsprint.
Public Discussion
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Himmatlal K Shah v Commissioner of Police,
1973 SC case: Bombay Police Act 1951 is
challenged. Refusal to hold public meeting in
public park held against Art 19. Public
processions are prima facie legal.
F of Expression and assembly are essential
elements of democratic system. Right to meet
face to face with others for discussion
Bandh & Expression Right
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Bandh is expression of protest, but forced
enforcement bandh is violation of other’s
right or expression and business.
CPM v.UoI AIR1998 SC 184, Bandh or Hartal
violate the Art. 19. FRs of citizens as a whole
cannot be subservient to the claim of FR of
an individual.
Express Case 1986
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Notice of re-entry upon forfeiture of
lease and threatened demolition of
building- Held to be threat to silence
the press, violation of 19(1)(a) &14.
Right to Reply LIC v Manubhai D Shah,
Yogakshema, 1986 SC 515, right to
propagate one’s view and to answer
criticism leveled against his view.
Beyond Genocide
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A trust produced documentary on Bhopal,
which won Golden Lotus, DD refused to
telecast, as it contains criticism of Govt. Not
valid under 19(1)(a) Film maker has a FR to
exhibit his film, onus lies on party which
claims that it was entitled to refuse under
19(2). Any attempt to stifle, suffocate or gag
this right would sound a death knell to
democracy.
Maneka Gandhi
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No geographical limitation on FoS, it carries
with it right to gather information as also to
speak and express oneself at home and
abroad and to exchange ideas with others not
only in India but also outside. If the direct or
indirect consequence of canceling passport is
to abridge FoS, not valid. But to travel
abroad cannot be claimed as an integral right
of FoS. 1978
National Anthem Case
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1986 3 SCC 615 Right of Jehova Witnesses
not to take part in singing NAnthem is not
insult and part of FoSE. Circular of Director
public instruction held violation of 19(1)(a)
Romesh Thapper, Cross roads case,
Brijbhushan Organiser Limiting FoSE to
prevent prejudicial activity not valid. Public
Order is added as ground for restrictions.
Newspapers Price Page Act
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Daily Newspaper Price and Page Order
1960, fixing minimum number of pages,
ad news ratio. It will affect circulation
so violative of Art 19. Sakal Papers Pvt
Limited v UoI 1962 SC 305
Bennet Coleman v UoI 1973 SC 106
Paper was asked to reduce the space
for ads. Held not valid.
Advertisements & 19(1)(a)
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Right to Govt Ads: equitable distribution
of ad revenue as per norms. Art 14
Govt cannot deny Ads because it was
criticised- Art 19. Dainik Samband v
State of Tripura, 1989, Ushodaya, 1981,
Gulam Nabi v J&K 1990
Mian Bashir v Jammu & Kashmir 1982,
J&K26. Privileges of rights under 105
Restriction on Ads
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Ads to promote drugs can be restrictedHamdard Dawakhana v UoI 1960 SC 554
Ad involves commercial element, thus to be
guided by noble restrictions. All ads does not
relate to FoS E of ideas.
Yellow Pages Case, 1995 (5) SCC 139:
commercial ad is also part of FoSE, no
exclusive right to publish Tele directory.
Electronic Media
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Honi Anhoni, was restrained as it spreads
false beliefs superstition. No material to show
that serial was prejudicial, not valid. Odyssy
Communications case1988 SC 1642
Restrictions on Tamas: Not valid Romesh v
UOI 1988 SC 775
Hero Cup Case: Govt has no monopoly of
airwaves. Right to telecast imp event. 1995
(2) SCC 161
Films
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Censorship justified in KAAbbas v UoI 1971
SC 481. Classifying as A and U valid
Bandit Queen case, Bobby Art International v
Om Pal Singh Hoon Case, 1996(4) SCC1
Issuance of A certificate was held valid. Film
has to be judged in its entirety. Nude scenes,
arousing a sense of revulsion against
perpetrators and pity for victim permitted.
Reasonable Restrictions
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Security of State- serious and aggravated
form of public disorder. Speeches and
expressions which encourage violent crimes
are considered to be related to security of
state
Public Order- state of tranquility which
prevails amongst the members of society as a
result of internal regulations enforced.
Public disorder
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Section 124 A of IPC:SC held that the activity
would be rendered penal when it is intended
to create disorder (State of Bihar v Shailabala
1952 SC 329) Not mere criticism of Govt
action. Official Secrets Act is in force in the
name of security of state.
Incitement to offence, insult to religion,
Section 144 CrPC Babulal Parate 1971 SC
Contempt of Court
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CoC Act 1973, Section 228 IPC makes
CoC punishable. Art 129 empowers SC
to administer CoC powers. Reasonable
Restriction over 19(1)(a).
Friendly Relations with Foreign Statesfor protection: Not through executive or
departmental instructions, only by
legislative restrictions.
Defamation
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Right to Reputation as read into Art 21.
Section 499 & 500 IPC
Decency & Morality: no writing should
deprave morals of youth, no expression
should promote indecent ideas and
activities. Hicklin Test Ranjit Udeshi,
Section 292 of IPC obscene Lady
Chatterley’s Lover SC upheld conviction.
Privacy
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Most invaluable human right, right to be let
alone to protect one’s inviolable personality
Intrusion of privacy threatens liberty, it is an
offence to personal dignity, outraging the
modesty of a woman 324 IPC. Insult to
modesty 505 IPC.
Autoshankar Case Rajgopalan v TN1995 SC
264, autobiography of condemned man
Telephone Taping
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PUCL v UoI 1997 SC 568 there should be just
and reasonable procedure for regulating the
exercise of power under Indian Telegraph Act
1885 Section 5(2), to safeguard rights of
people under 21 and 19
Tapping violates 19 if fair procedure is not
adopted. It may be violation of privacy also.
Interview of prisoners
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Press can interview prisoners, but
require to seek consent of prisoner and
permission from authorities as per Jail
Manual (Smt Prabha 1982 SC 6) For
interview of under-trial prisoner, court
has to permit, journalist has to do it as
per the restrictions and regulations as
per jail manual
Press has no unfettered right to
interview. (Charulata Joshi, 1999 SC
Section 295 A of IPC
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Deliberate and malicious insult or attempt to
insult or to outraging the religious feelings,
disrupt the public order, to punish it under
295 is valid under 19(2) (Ramjilal Modi v
State UP 1957 SC 620)
Promotion of disharmony or ill will between
two groups 153A IPC, religious appeal with
prejudicial effect-offence u/s 123(3A) RPA
Babulal v Maha 1961 SC 884
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Prohibitive orders can be given by DM u/s
144, to prevent disorders, obstruction and
annoyance and the Magistrate has to act
judicially, the orders are temporary in nature
to meet emergency situations.DM could be
the judge of situation.
Life of this order cannot be extended beyond
2 months, if so, it is unconstitutional
Liberty is not licence to
anarchy
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Justice Jackson: it is not choice between
order and liberty, but it is between liberty
with order and anarchy without either.
He pleaded for little practical wisdom in
extending doctrine of clear and present
danger test, if not bill of rights convert into a
suicide pact. (Teminiello v Chicago 337 US 1)
Flag case in US
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Minersville School Dist v Gobitis 310 US 586,
US SC upheld the requirement of participation
by the school students in flag saluting
ceremony and Jehovah witnesses are not
exempted from mandatory requirement on
grounds of violating religious belief.
Display of red flag as protest is protected
(Stromberg v California 283 US 359)
Burning Flag
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Street v New York 1969 US, street burned 48
star flag of US uttering some contemptuous
words against flag as a protest against killing
of James Meredith in Mississipi. SC reversed
conviction of Street for words. Though
punished for burning, his words are
protected.
Thornhill v Alabama,1940 310 US 88 peaceful
picketing is Constitutional.
First Amendment
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After Crossroads (affecting public order) &
Organiser(disturbing friendly neighbours), In
re Bharati Press (writing inciting an offence)
cases, first amendment was brought in 1951
to include three grounds
1) public order,
2)friendly relations with foreign
countries
3) incitement to an offence
Preventive Injunction
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Reliance Petrochemical Ltd v Indian
Express 1989 SC 190: WPs filed
challenging Secured Convertible
Debentures of RP, SC allowed issue to
be proceeded with. Interim injunction
against Express from writing against, E
moved for vacation, court has to
balance free press and fair trial. (CJ
Sabyasachi said right to know is
essential under Art 21)
Press v Parliament
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MSM Sharma v Sri Krishna Sinha 1959 SC
395. Parliament can prohibit publication of
any report in press. 19 is subject to 194(3)
In re Special Reference1965 SC 745 Kehar
sing punished by speaker for pamphlet
distribution in assembly. Filed WP. LA ordered
arrest of judges, advocate and K, 28 JJ
stayed it. LA ordered JJ to appear.
Reporting Legislature
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Parliamentary Proceedings (Protection of
Publications) Act, 1956, It was repealed in
Emergency.
Article 361A added in 1978 to protect
publication of proceedings if substantially
true, without malice. Immunity from court
proceedings also extend to media, electronic
and news agency also. Applicable to
Legislative reporting also. Secret session
cannot be reported.
TV: Indira Jaising
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Indira Jaising v UoI 1989 Bom 28
Petitioner was interviewed on Muslim
Women (Right to Protection on Divorce)
Bill, but was not telecast. HeldViolation of 19.
Universal Communication System Case,
1995 AlHC 6398 Hindalco 1966 all 199
entertainment tax levied on Cable TV
Network, valid.
Right to Use Loudspeaker
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K. Venu v DGP 1990 Ker 344 There is
no fundamental right to use
loudspeaker. Sound pollution and
indiscriminate use can be regulated.
Venu was denied mandamus.
DA Prabhu v State of Ker1975 Ker 117
total restriction on use of loudspeaker is
against 19.
Compelled Speech
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(Motion Picture Association 1999 SC
2324) Direction to exhibit news current
events does not violate 19.
Statutory obligation that any food
product must carry on its package list of
ingredients used in its preparation,
weight, mrp etc, obligation to publish
statutory warning on cigarette -valid.