Recently, Reporters without Borders placed India at the 150th position among 180 nations in its World Press Freedom Index, 2022. It is important to discuss the constitutional scenario regarding the Freedom of Press, the scope of reasonable restrictions imposed on it and the major threats to Freedom of Press in India. The Press is subjected to the laws of the nation just like an individual is but it is important to note that it would be against the visions of democracy to curtail the Freedom of Press and restrict the dissemination of opinions under the veil of those laws.[i]The Apex Court has observed that Freedom of Press is not so much for the benefit of the Press as it is for the betterment of the general public as it acts as an educator to the general public.
Unlike the US Constitution, Freedom of Press does not find an explicit mention in the Constitution of India. Freedom of Press is considered as a basic right of a citizen and not as a separate special right. Dr. BR Ambedkar also opined that no explicit mention of Freedom of Press was required because press’ rights are the same as those of an individual which may be covered under 19(1)(a). In Romesh Thappar v. State of Madras[ii], it was observed that Press has the role of educating the public and is placed at the foundation of a democratic setup and Article 19(1) (a) covers the Freedom of Press. It was observed that this Article gives the right to freely express one’s opinions by a piece of writing, by speech or through some other mode.
The Freedom given to the press extends to newspapers, periodicals, leaflets, pamphlets etc. It is also important to note here that no law which cannot be imposed on an individual, can be imposed on the press.[iii] It is also important to note that censorship, which was in the news recently due to the IT Rules, was also observed as a hindrance to the free press and a violation of Freedom of Press.[iv] Ban on pre-publication which can be seen in cases of alleged media trials is also required to be justified by showing that reporting on the case may act as a clear and imminent hindrance to the administration of fair trial and justice.[v]It was also observed that Freedom of Press is not limited only to the volume of circulation and also extends to the volume of news and opinions.[vi]
Use of Reasonable Restrictions
Article 19(2) of the Constitution provides for some grounds of reasonable restrictions which can be imposed on the Fundamental Right granted under 19(1)(a). It is important to note that the restrictions under 19(2) can only be imposed by legislation and not by executive action.[vii]The first ground is the sovereignty and integrity of India. If Press is indulging in activities which are furthering the idea of secession of Indian territory, then this can be the ground for restriction. It is also important to note that the secession should be with regard to the Union as a whole.
The reasonable restriction should not be exploited and cannot be imposed on the ground that the Press is furthering the idea of altercation of boundaries of a state within the Union. It is not legitimate to curtail this right if the idea of taking or giving away a state territory to another state within India is being disseminated. The second ground is the Security of the State. It is important to note that serious activities of the public disorder are covered under this provision and not each and every public disorder will be a ground to curtail the right. Before public order was added as a separate point, in Romesh Thappar v. State of Madras, it was observed that ordinary challenges to public order will not be a valid reason to restrict the right. The third ground which can restrict the fundamental right is that the Press is forwarding or reporting on the idea of some things which can put the relations between India and foreign countries in jeopardy.
Another ground is public order which has been one of the major causes of problems with reasonable restrictions. A separate provision for public order has made curtailment of the freedom easy on grounds of activities of only local significance which may not be of an extent covering the security of the State. In Ram Manohar Lohia[viii], public order was equated to public peace, safety and tranquility. It is important to draw a nexus between the achievement of public order and the restriction imposed. It is important to note that the right can easily be threatened in the interests of public order which may not be necessary for the maintenance of public order. Even the things which have a tendency to disrupt public order can be curtailed beforehand, even if they did not cause any disorder in the actual sense.[ix] This interpretation is also the root of many curtailments which the Press is subjected to by the State. It is important to note that the State uses this tendency argument very often to prove a restriction and hamper Freedom of Press. Other grounds are Contempt of Court, defamation, decency and morality and incitement of an offence. It is important to note that Press and journalists have been subjected to lawsuits on these grounds extensively. A newspaper criticizing a Supreme Court judgment is not worthy of contempt.[x]
It is also important to note that reasonable restrictions should be proved to be valid on grounds of their purpose, the level of the evils which are needed to be controlled by those restrictions, the extent of the restriction imposed, the scenario when it is imposed as well as the time period for which it is imposed.[xi] There are some factors which are needed to be kept in mind when a restriction is studied in the light of reasonableness. The restriction imposed should not be of an excessive nature and should be reasonable and not be arbitrary.[xii] It is important to note that the reasonableness of the law is not what is required to be dealt with, it is the restriction which is subjected to the test of reasonableness.[xiii] Both the nature of restriction as well as the process by which it is exercised by the State is required to be considered while deciding the reasonableness. The interests of the general public are required to be taken into consideration from an objective angle.[xiv] A restriction can be said to be reasonable if it is put into force to implement a Directive Principles of State Policy (DPSP).[xv] This can also very well be used as a tool to curtail the Freedom of Press. It is also to be kept in mind that after it is proved that a restriction is imposed on the Freedom of Press, the onus is on the State to prove that the restriction is a reasonable one.[xvi]
It was observed in a case[xvii] that Freedom of Press permits the Press to indulge in uninhabited debates about public figures’ involvement in the public arena but when it comes to their private life, a proper line has to be drawn between Freedom of Press and Right to Privacy coupled with defamation. In one case[xviii], it was stated that Press can take an interview with prisoners condemned to death if they want to get interviewed. It should not be denied unless there are strong reasons to prove the denial by the State. The constitutional safeguards and judicial interpretations come to the rescue of the Press but it always has a threat from the Executive.
Inherent Threats to Freedom of Press
1. Retention of archaic laws
Non- elimination of sections like Section 124A, Section 153 of IPC etc. are acting as a hindrance to Freedom of Speech and Expression. They are used as a tool to instill fear in the minds of individuals and Press to put forth their opinions.
An application in the Supreme Court stated that in recent years, there has been an exponential growth in the lodging of sedition cases. In 2019, 93 cases of sedition were filed which was only 35 in 2016, showing a 165% jump. Out of these 93 cases in 2019, charge sheets were filed in only 17% cases and the conviction rate was as low as 3.3%. This clearly shows how in most cases, stringent provisions like sedition are being used to suppress dissent without any basis. An independent research data reveals that in 2020, cases were lodged against 67 journalists in India for the work they do.
Sedition is not mentioned as a ground to limit Freedom under Article 19(1)(a) in the Constitution. But, as upheld in Kedar Nath Singh v. State of Bihar[xix], sedition is not unconstitutional. However, strong criticism of the government within reasonable limits will be very well consistent with the Freedom of Speech and Expression. Only, statements or other actions which have a tendency to incite violence are subjected to the law of sedition. It was observed that Section 124A is something which imposes reasonable enough restrictions with regard to public order and hence cannot be said to intervene with the right to Freedom of Press. [xx] In recent times, a number of cases have been lodged against members of the Press to suppress the voices of dissent. Arrest, torture and harassment can be seen as things which demotivate people and the Press to express their opinions which may also be of dissenting nature.
The Sedition law is time and again used by the Government to curtail the Freedom of Press. The Courts act as a savior for many Press members. Recently, two Telugu television channels in Andhra Pradesh were booked under sedition as they telecasted an interview of a rebel MP of the ruling party. The Supreme Court ordered that no coercive action could be taken against the channels TV5 and ABN Andhrajyothi. The interview which was critical of the government could not be seen as something seditious to punish the two TV channels. Justice DY Chandrachud also observed that it is high time that sedition limits are defined. Recently, a sedition case was quashed by the Apex Court in which a journalist was booked under Sedition for criticizing the government for mishandling of covid-19.[xxi] It also observed and reiterated that strong words of disapproval are not sedition. It stated that every journalist has a safeguard under KedarNath Singh judgment.
2. Judicial and Executive Imperfections
Some lower courts may not give enough consideration to imposing bans on pieces of Art, Literature, etc. which may take a considerable amount of time to be overturned. It may result in considerable losses or may give a shock to the Freedom of Speech and Expression till a High Court or the Supreme Court overturns the decision. A nod from the lower courts to baseless cases may cause considerable harm to the spirit engraved in Article 19(1)(a). Also, if the police are not sympathetic toward the constitutional guarantee of Freedom of Speech and Expression, then it could spell doom for the Press members and journalists. The executive may use stringent laws to harass the Press and journalists who are critical of the government.
3. Dependency of media on advertisements
The media may be dependent on commercial and government advertisements. Both newspapers and news channels are dependent on the advertisements which come from both private players and the government. The government may alter its choice of media advertisements according to its own will. Though advertisements are not a constitutional right, they can very well have an indirect but huge impact on the Press and their voices. Similarly, the private players can pull back their advertisements from papers who are critical of their conduct and business. Thus, it would not be very wrong to say that the media and Press rely on the advertisements and thus may not freely report about the entities which provide them advertisements.[xxii]
4. Executive actions like Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
The new IT Rules are specifying provisions for ethics which is to be followed by entities which also include the Digital Media publishers, which brings the Freedom of Press to the forefront. The news and current affairs media which include online papers, news portals etc. are required to follow a Code of Ethics according to Rule 9(1). According to Rule 9(3), a three-tier grievance-redressal system is also made for them, the first two of them being self-regulation by itself and then by the association of publishers. Then, at the top of the three-tier mechanism is the more problematic provision of oversight by the central government. Speaking about oversight, the debate of censorship also comes up. Censorship is another area of concern which has the potential to curtail unlawfully the Freedom of Press.
The Freedom of Press in censorship is buried even before the right is practiced leaving no room for public debate and conversation. Pre-censorship and circulation curb was held as violative of Article 19(1)(a) in Express Newspapers. Bombay High Court has observed that these IT Rules go beyond what Section 69A of Information Technology (IT) Act envisages. It also said that the IT Act did not make provisions for something like these rules which can censor the content on the internet. It held Rule 9 violative of Freedom of Speech and Expression as the internet media cannot be subjected to the Press Council Act, 1978 and the Cable TV Networks Regulation Act, 1995. The Madras High Court also stayed some provisions of the new Rules and stated that these rules could very well go against the Freedom which is given to the public educator. The oversight mechanism may be detrimental to the independence given to the media. Kerala High Court also expressed its opinion in one of the petitions that these new IT Rules may act as a hindrance to Freedom of Speech and Expression of the Media.
There should be more specific and non-arbitrary provisions regarding reasonable restrictions which should be followed before an FIR or a case is lodged against a Press member so that it cannot be used as merely a tool to harass the member of the Press. The law should not be used to curtail the freedom which is very important to educate the public so that they may form an informed opinion. This is what democracy advocates. Dissent is the base of democracy and it should be kept so with more specified provisions for restrictions imposed on Freedom of Press. The Press highlights the scams and corruption of the officials and the Government which help in making informed choices regarding votes.[xxiii]
An idea of a high-level committee as propounded by a journalist in the case mentioned above, ideas can be drawn that some protection should be granted to the Press so that lodging a baseless case does not result in harassment of the Press member. The suffering period between quashing and lodging of the case is enough to raise questions on the Freedom of Press to the individuals, especially in cases where cases are lodged under stringent Sedition and UAPA laws just to suppress dissent. Law should not be used to have a chilling effect on free speech and expression. Many cases have been lodged against reporters for mere reporting the fallacies of the Government in handling the pandemic. Courts should reject baseless cases with exemplary costs in order to set a precedent that these cases should not be filed in the first place. Also, reporting from places like Kashmir or reporting on influential people and leaders may be something which a journalist would not desire due to the sorry state of affairs of the Freedom of Press in India. Unfortunately, the state of Freedom of Press is not in a sound condition and reforms are required to ensure that the law is not used as a tool to suppress dissent.
[i] Express Newspapers v. Union of India, AIR (1958) SC 578.
[ii]RomeshThappar v. State of Madras, AIR (1950) SCR 594.
[iii]Sakal Papers v. Union of India, AIR (1962) SC 305.
[iv]BrijBhusan v. State of Delhi, AIR (1950) SC 129.
[v] Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay, (1988) 4 SCC 592.
[vi] Bennett Coleman & Co. v. Union of India, AIR (1973) SC 106.
[vii] Express Newspapers v. Union of India, (1986) 1 SCC 133.
[viii] Supt., Central Prison v. Ram ManoharLohia, AIR (1960) SC 633.
[ix]RamjiLalModi v. State of U.P., AIR (1957) SC 620.
[x] Re: Sham Lal, (1978) 2 SCC 479.
[xi] State of Madras v. V.G. Row, AIR (1952) SC 196.
[xii]Dwarka Prasad LaxmiNarain v. State of U.P., AIR (1954) SC 224.
[xiii] N.B. Khare v. State of Delhi, 1950 SCR 519.
[xiv]Mohd. HanifQuareshi v. State of Bihar, AIR (1958) SC 731.
[xv] State of Bombay v. F.N. Balsara, AIR (1951) SCR 682.
[xvi]Mohd. Faruk v. State of M.P., AIR (1970) SC 93.
[xvii]R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
[xviii] Smt. PrabhaDutt v. Union of India, AIR (1982) SC 6.
[xix]KedarNath Singh v. State of Bihar, AIR (1962) SC 955.
[xx]D. Soren v. State, 1953 SCC OnLine 100.
[xxi]VinodDua v. Union of India & Ors., 2021 SCC OnLine SC 414.
[xxii]VinodDua v. Union of India & Ors., 2021 SCC OnLine SC 414.
[xxiii]People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399.
This article has been written by Shivesh Didwania, 2nd year Law student at Maharashtra National Law University, Mumbai.