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Acknowledgement

We would like to express our profound gratitude to our project

guide
Prof, who has so ably guided our research project with her
vast fund of knowledge, advice and constant encouragement,
which made us, thinks past the difficulties and led us to
successful completion of the project.
We have tried to cover all the aspects of the project & every
care has been taken to make the project faultless. We have
tried to write the project in our words as far as possible and
simplified all the concepts by presenting it in a different form.
Well look forward in future for such type of project. We are
eagerly waiting for fruitful comments and constructive
suggestions.

THANKING YOU

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 Contents
1. INTRODUCTION.

2. CONSTITUTIONAL HISTORY OF INDIAN FREEDOM PRESS...

3. FREEDOM OF PRESS IN INDIA: CONSTITUTIONAL PRESPECTIVE...

4. AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS AND OTHER

LEGISLATIONS REGULATING FREEDOM OF PRESS IN INDIA..

5. PRESS FREEDOM- CURRENT SCENARIO.

6. FREEDOM OF PRESS AREAS OF REASONABLE RESTRICTIONS.

7. CONCLUSIONS & SUGGESTIONS.

8. BIBLIOGRAPHY

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 Objective of the Study
The Researcher has to find the provisions relating to Freedom of Press

To study and understand the proper meaning of Article 19(1)

To determine up to which extent press is free in India?

Hypothesis
The researcher has assumed the following points-

That freedom of press is not absolute, unlimited and unfettered at all times and in all
circumstances as giving an unrestricted freedom of the speech and expression would
amount to an uncontrolled licence.
That freedom of press is not defined properly

Research Methodology
In this project, the researcher has relied on the Doctrinal Method, which is primarily based
upon books, journals, news, articles etc. A comprehensive study is made in order to arrive at
analytical & critical support of the arguments. The segments are structured and written actively.
The writing style is descriptive as well as analytical. This project has been done after a thorough
research based upon intrinsic and extrinsic aspect of the assigned topic.

Introduction
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In Tamil Nadu where six journalists were sentenced to 15 days simple imprisonment for alleged
breach of privilege and contempt by the state Legislative Assembly brings back the not so
pleasant memories of the Emergency. There is a saying that those who forget history are wont to
repeat it. The action was condemnable as the intent of those who passed the judgment is itself,
questionable. The threat to freedom of the press in this country or for that matter in all of Asia
hangs like the proverbial sword of Damocles. In India, no political party can boast of respecting
the freedom of the press. There have been numerous instances of newspaper offices being
vandalized and editors and journalists being roughed up by political flunkeys for publishing
articles that were critical of their leaders whose credentials were suspect, to say the least. This
sorry state of affairs has increased in recent years.

Not long ago, an article published by Alex Perry, a foreign journalist, on the then Prime Minister
Vajpayee's fitness, thereby questioning his ability to lead the nation, considerably angered the
then ruling party. The press is considered the watchdog of democracy. Sadly, there is scant
regard for this truism in a country which is, ironically, the world's largest democracy. Self-
discipline, which is so crucial for the survival of any democracy, is fast disappearing from the
Indian polity. Tolerance levels are declining and arrogance is all-pervasive. More often than not
political power is used to further the cause of the power-hungry rather than to serve the masses.
When obedience to the question. Even after more than Six decades of Independence, democracy
in India has still not matured and the quality of public life is declining alarmingly. Today,
political leaders are voted to power because of their oratory and manipulative skills and not for
their wisdom and virtue. We cannot expect better governance if we continue to elect people with
criminal track records and ill intentions. Fortunately, the Indian citizen can depend on a strong
judiciary, which has so often come to the rescue.

The press, on its part, should bear in mind that freedom of the press does not mean a license to
write anything. This freedom is precious and it has to be used judiciously. When this freedom is
misused, public respect for this profession will diminish. The press has to guard against this.

Indian press has a long and chequered history spreading over the last two hundred years. There
were a series of enactment, ever since the East India Company directed against the press. Unlike
the first amendment of the U.S. Constitution, Article 19(1) (a) speaks of freedom of speech and

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expression and does not specially mention freedom of press. Dr. B.R. Ambedkar stressed that
the freedom of expression includes freedom of the press. He said the press is merely another
way of stating an individual or a citizen.1

The constitution guaranteed the fundamental right to freedom of expression, and the Supreme
Court of India lost no time in declaring that the freedom of the press was included in that
guarantee.2

Justice Patanjali Shastri in one of the earliest cases on the press freedom, namely, Romesh
Thapper vs. State of Madras3 underlined the special role of the press in a democratic
organisation.

In the Express Newspapers Case4 justice N.H. Bhagwati said that the fundamental right to
freedom of speech and expression enshrined in our constitution is based on the provisions in
First Amendment of the constitution of the United States....and it would, therefore, be legitimate
and proper to refer to those decisions of the Supreme Court of the United States of
America...He, in fact reviewed the important American decisions and applied those principles in
interpreting Article 190) (a).5

In Indian Express Newspapers Pvt. Ltd. vs. Union of India 6, Justice E.S. Venkataramiah said
that Freedom of Press must be considered as a "basic structure" of the constitution.

The press is a responsible part of a democratic society. It should provide the public with an
intelligent narration of the day's events, set in a context which gives them meaning. It must also
clarify the values of society and present a clear picture of its goal.7

Justice Jeevan Reddy and Justice B.N. Hansaria in the Printers (Mysore) Limited vs. State of
Karnataka reiterated "freedom of press has always been a cherished right in all democratic
1 Constitutional Assembly Debates, Vol. VII, p. 780 (2.12.1948)

2 Durga Das Basu, Law of press in India (1980) p.23

3 1950 INDLAW SC 9

4 Express Newspapers (Pvt.) Ltd. Vs. Union of India 1958 INDLAW SC 3

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countries. The democratic credentials of a State are judged today by the extent of freedom the
press enjoys in that state.8

Freedom of Press carries different meanings for different people. But freedom of press cannot
be absolute. There must be boundaries to it and realistic discussion concerns where these
boundaries ought to be set9. Freedom of press did not confer on the press any right to have an
unrestricted access to the means of information.10

5 The principles are: freedom of the press rests on the assumption that the widest
possible dissemination of information from diverse and the antagonistic sources is
essential to the welfare of the public; such freedom is the foundation of free
government of a free people; the purpose of such a guarantee is to prevent public
authorities from assuming the guardianship of the public mind; and Freedom of
press involves freedom of employment and non-employment of the necessary
means of exercising this right or in other words, freedom from restriction in respect
of employment in the editorial force. It is interesting to note that the Supreme
Court had warned against the application of American cases in Travancore- Cochin
vs. Bombay Co. Ltd, A1952 INDLAW SC 88; State of Bombay vs. R. M. D.
Chamarbaugwala, 1957 INDLAW SC 153; Bhagwati's opinion in Express
Newspapers case was overruled by the supreme court in Santokh Singh vs. Delhi
Administrator, 1973 INDLAW SC 82.

6 1984 INDLAW SC 1

7 Indian Press Commission Report, (1954) p. 339

8 AIR 1994 S.C. 23 See Times of India, February 12, 1994

9 Royal Commission on the Press, final report (1977), pp. 8-9, Dimensions of press
freedom, Indian Press, Vol. V No. 12, December 1978 pp. 9-12.

10 Smt. Prabha Dutt vs. Union of India, 1981 INDLAW SC 75

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 Constitutional History of Indian Press Freedom
Democracy can flourish only where its citizens enjoy full freedom of speech and expression
subject only to reasonable restrictions. Hence due to this anxiety only the press council of India
was born in 1954. But if, we look to the historical background of the Media law, we will find
that, it was as early as in 1799 that first time, Lord Wellesley promulgated the "Press
Regulations", which had the effect of imposing pre-censorship on an infant newspaper
publishing industry. Thereafter, in 1835 the "Press Act" was passed. Then in 1857 the
government passed the 'Gagging Act', which among various other things, introduced
compulsory licensing for the owning or running of printing presses; empowered the government
to prohibit the publication or circulation of any newspaper, book or other printed material and
banned the publication or dissemination of statements or news stories which had a tendency to
cause a furor against the government, thereby weakening its authority. The process continued,
but the constitution makers brought the most significant change, by inserting Article 19 (1) (a)
in the part III, as fundamental right of the constitution. This speaks about the freedom to express
& expression. This only led to the formation of Press Council of India. Although, the Indian
Constitution does not expressly mention the liberty of the press, it is evident that the liberty of
the press is included in the freedom of speech and expression under Article 19(1) (a). Keeping

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this in mind Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of Indian11 has stated:

"In today's free world freedom of press is the heart of social and political intercourse. The press
has now assumed the role of the public educator making formal and non-formal education
possible in a large scale particularly in the developing world, where television and other kinds
of modern communication are not still available for all sections of society. The purpose of the
press is to advance the public interest by publishing facts and opinions without which a
democratic electorate [Government] cannot make responsible judgments. Newspapers being
purveyors of news and views having a bearing on public administration very often carry
material which would not be palatable to Governments and other authorities."

The above statement of the Supreme Court illustrates that the freedom of press is essential for
the proper functioning of the democratic process. Democracy means Government of the people,
by the people and for the people; it is obvious that every citizen must be entitled to participate in
the democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential. This explains the
constitutional viewpoint of the freedom of press in India.

11 1984 INDLAW SC 1

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Freedom of Press in India: Constitutional
Perspectives
The Freedom of press includes more than merely serving as a "neutral conduit of information
between the people and their elected leader or as a neutral form of debate". In India before
Independence, there was no constitutional or statutory guarantee of freedom of an individual or
media/press. At most, some common law freedom could be claimed by the 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."

With object and views, the Preamble of the Indian Constitution ensures to all citizens inter alia,
liberty of thought, expression, belief, faith and worship. The constitutional significance of the
freedom of speech consists in the Preamble of Constitution and is transformed as fundamental
and human right in Article 19(1) (a) as "freedom of speech and expression".

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The present study is intended to present the provisions of the Indian Constitution and other
national instruments which recognise the freedom of press as an integral part of the freedom of
speech and expression, the basic fundamental rights of human being. 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 view taken by the Hon'ble Supreme Court on the subject.

The main object of providing guaranteed freedom of press is for creating a fourth institution
beyond the control of State authorities, as an additional check on the three official branches
the executive, the legislature and the judiciary. It is the primary function of the press to provide
comprehensive and objective information on all aspects of the country's social, economic and
political life.

For achieving the main objects, freedom of the press has been included as part of freedom of
speech and expression which isa universally recognised right adopted by the General Assembly
of the United Nations Organization on 10th December, 1948. The heart of the declaration
contained in Article 19 says as follows:

"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.

The same view of freedom of holding opinions without interference has been taken by the
Supreme Court in Union of India v. Assn. for Democratic Reforms in which the Court has
observed as follows: (SCC p. 317, Para 38)

[O]ne-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."

In India, freedom of press is implied from 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).

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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". The
provision in the US Constitution has two notable features i.e.:

1. Freedom of press is specifically mentioned therein,

2. 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, 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:

1. Freedom of access to all sources of information either of one's own views or borrowed from
someone else or printed under the direction of the person,

2. Freedom of publication and freedom of circulation.

Freedom of speech is the bulwark of democratic Government. In a democracy, freedom of

speech and expression opens up channels of free discussion of issues. It implies that there
should be a close link between the Government and the people. Freedom of speech plays a
crucial role in the formation of public opinion on social, political and economic matters.

Similarly, the persons in power should be able to keep the people informed about their policies
and projects, therefore, it can be said that freedom of speech is the mother of all other liberties.

Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India has stated: "In today's free world freedom of
press is the heart of social and political intercourse. The press has now assumed the role of the
public educator making formal and non-formal education possible in a large scale particularly in
the developing world, where television and other kinds of modern communication are not still
available for all sections of society. The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate [Government] cannot make

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responsible judgments. Newspapers being purveyors of news and views having a bearing on
public administration very often carry material which would not be palatable to Governments
and other authorities!'

The above statement of the Supreme Court illustrates that the freedom of press is essential for
the proper functioning of the democratic process. Democracy means Government of the people,
by the people and for the people; it is obvious that every citizen most be entitled to participate in
the democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential. This explains the
constitutional viewpoint of the freedom of press in India.

In Printers (Mysore) Ltd. v. CTO12 the Supreme Court has reiterated that though freedom of the
press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech
and expression. Freedom of the press has always been a cherished right in all democratic
countries and the press has rightly been described as the fourth chamber of democracy.

The fundamental principle which was involved in freedom of press is the "people's right to
know". It therefore received a generous support from all those who believe in the free flow of
the information and participation of the people in the administration; it is the primary duty of all
national courts to uphold this freedom and invalidate all laws or administrative actions which
interfere with this freedom, are contrary to the constitutional mandate.

In R. Rajagopal v. State of T.N 13 the Supreme Court of India has held that freedom of the press
extends to engaging in uninhabited debate about the involvement of public figures in public
issues and events. But, as regards their private life, a proper balancing of freedom of the press as
well as the right of privacy and maintained defamation has to be performed in terms of the
democratic way of life laid down in the Constitution.

Therefore, in view of the observations made by the Hon'ble Supreme Court in various
judgments and the views expressed by various jurists, it is crystal clear that the freedom of the

12 1994 SCR (1) 682

13 1995 AIR 264

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press flows from the freedom of expression which is guaranteed to "all citizens" by Article
19(1) (a). Press stands on no higher footing than any other citizen and cannot claim any
privilege (unless conferred specifically by law), as such, as distinct from those of any other
citizen. The press cannot be subjected to any special restrictions which could not be imposed on
any citizen of the country.

An overview of the Constitutional Provisions and

other Legislations regulating Freedom of Press in
India
Freedom of press has always been a cherished right in all democracies. "Growth and
development of representative democracy is so much intertwined with growth of press that the
press has come to be recognized as an institutional limb of modern democracy."14

The newspaper not only presents facts but also gives interpretation of facts and statements of
opinions through its editorials and also propagates ideas and ideologies. They are supposed to
guard public interests by bringing to fore the misdeeds, failings and lapses of the government

14 Vide Authors Commentary on the Constitution, 6th ED Vol. C, Pg 95-97; Indian Express
Newspapers Pvt. Ltd. vs. Union of India 1984 INDLAW SC1

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and other bodies exercising governing power. The press has therefore been rightly described as
the Fourth Estate.

And hence it is also very necessary to limit this influential institution's powers. "Freedom of
Press is not absolute, unlimited and unfettered at all times and in all circumstances as it would
lead to disorder and anarchy."15

The Indian Constitution provides for this freedom in Article 19(1) (a) which guarantees right to
freedom of speech and expression. It has been held that this right to freedom also includes press
freedom. It is an implied or deduced right. [The economic and business aspects of the press are
regulated under Article 19(1) (g) which provides for freedom of profession, occupation, trade or
business which is restricted by Article 19(6) which includes provisions for public interest,
professional and technical qualifications and state nationalization- total or partial.

Freedom granted under Article 19(1) (a) is restricted by the limitations which are mentioned in
Article 19(2) which provides that the guarantee of the above right would not affect the operation
of any existing law in so far as it is related to, or prevent the state from making any law relating
to libel, slander, defamation, contempt of court or any matter which offended against decency or
morality or which undermined the security of or which tended to overthrow the state.

Article 19(2) has been amended twice since the commencement of the Constitution. The first
Amendment was in 1951 and it was followed by a second one in 1963. Article 19(2) was first
amended by the Constitution (First Amendment) Act, 1951. This Amendment enlarged the scope
of the restrictive clause by addition of three new grounds viz. Friendly relations with foreign
states, public order and incitement to an offence. The term 'defamation' being a generic one and
'libel' and 'slander being its species; that term and the words 'tends to overthrow the state' was
dropped by the Amendment. The expression 'security of the state' was meant to cover the
ground 'to over throw the state' also. Another feature of the first Amendment was inclusion of
the word "reasonable" before the word "restrictions". As a result of the cries and agitation for
secession from India by the regional groups Article 19(2) was further amended. It was amended
by the Constitution [Sixteenth Amendment] Act 1963 which included one more ground in the
clause, viz. Sovereignty and integrity of India.
15 In Re : Harijai Singh and Another In Re : Vijay Kumar 1996 INDLAW SC 2426

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The clause, Article 19(2) now runs as follows:

"Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent
the state from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub clause in the interest of the sovereignty and
integrity if India, the security of the state, friendly relations with foreign states, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an
offence."

Although Article 19 (1) (a) is limited by the above clause the courts have adopted a liberal view
while deciding questions pertaining to press freedom of constitutional validity of an impugned
statute. The superior courts discharged the role of sentinel on the qui vive.

The Supreme Court has emphasized the great value of the freedom of press in democratic
society. Thus from the start the judiciary has vindicated the stand taken in the Constituent
Assembly. In Ramesh Thapper v State of Madras 16 the Supreme Court struck down as violating
Article 19(1) (a), the Madras Maintenance of Public Order Act 1949, whose section 9[1A]
sought to impose restrictions on the freedom of press not against undermining the security of
the state or its overthrow but for the wider purpose of securing public safety or maintenance of
public order; as in the opinion of the Court the law fell outside the scope of Article 19(2). The
Court laid down the following rule that so long as the possibility of a law being applied for
purposes not sanctioned by the Constitution cannot be ruled out; it must be held to be wholly
unconstitutional and void since it is not severable.

The Court also struck down in Brij Bhushan vs. State of Delhi 17 which was essentially on the
same lines , the East Punjab Public Safety Act1949 which, through its section 7 (1) (o),
provided for special measures to ensure public safety and the maintenance of public order.

In the Bharati Press the validity of section 4 (1) (a) of the Press [Emergency Powers] Act 1931
was in question. The section which dealt with incitement to an offence was held to he worded in

16 1950 INDLAW SC 9

17 1950 INDLAW SC 8

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general terms and was declared ultra vires (beyond the legal capacity of a person, company, or
other legal entity) by the Patna High Court as it could have been applied to both 'aggravated
forms of offences like political assassination and as also to ordinary murders or cognizable
offence involving violence.' Hence Constitution [First Amendment] Act, 1951 was passed to
include the grounds of public order and incitement to an offence to meet the situation which
arose from Supreme Court's decision in Romesh Thappar's case.18

'The expression 'freedom of press' has not been used in Article 19 but it is comprehended within
Article 19(1) (a). The expression means freedom from interference from authority which would
have the effect of interference with the content and circulation of newspapers. There cannot be
any interference with that freedom in the name of public interest. The purpose of the press is to
advance the public interest by publishing facts and opinions without which a democratic
electorate cannot make responsible judgments. Freedom of press is a heart of social and political
intercourse; it is the primary duty of Courts to uphold the freedom of press and invalidate all
laws or administrative actions which interfere with it contrary to the constitutional mandate."19

The 44th Amendment [1978] of the Constitution also provides for constitutional protection for
journalists from 'breach of parliamentary privilege' as they are allowed to publish proceedings
of the Parliament and state legislatures. Article 361-A was incorporated into the Constitution by
this amendment and it provides that 'No person shall be liable to any proceedings, civil or
criminal, in any Court in respect of the publication in newspaper of a substantially true report of
any proceedings of either house of Parliament or the Legislative Assembly or as the case may be
either house of legislature of a state; unless publication is proved to have been made with
malice.' Article 19 of Universal Declaration of Human Rights is recognized and followed in
India, which states that

"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 frontiers."

18 Ibid.

19 Indian Express Newspapers V. Union of India 1984 INDLAW SC 1

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 Press Freedom- Current Scenario
Freedom of press or rather the lack of it as an issue has gained importance in the last 2- 3 years.
Some of the recent incidents which have brought the issue to the forefront are as follows:

Spearheading the list is the Tehelka episode where the news portal was forced to shut down
completely following the continued harassment of its [Tehelka.com's] journalists for having
exposed the 'scam' in the defense department involving ex defense Personnel's and central
government ministers.

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Another issue which created a lot of hue and cry over press freedom was the threat to expel
Alex Perry of the TIME magazine which questioned Prime Minister Vajpayee's physical fitness
to lead the country. Journalists working in Gujarat and Kashmir have also been susceptible to
frequent attacks for reporting on the political scene there.

But the latest controversy which has brought the perennial problem' 20 of protection of freedom
of speech and press from arbitrary exercise of the power of punishing for contempt possessed
by the legislature, back in to limelight, is the action of the Tamil Nadu Legislative Assembly, of
punishing the editors and journalists of The Hindu for publishing reports of speeches in the
Assembly and for editorial comments on its action of referring those reports to its privilege
committee.

The root and justification for the existence of the power of the Parliamentary Privilege given by
our Constitution lies in the ancient privilege given to English House of Commons in 1689. But
these powers of the house which have been referred to as "insult laws" 21 have been condemned
and scrapped in most of the nations. The powers of commitment to prison which were described
in England as the keystone of Parliamentary Privilege are no longer in use. The Joint
Parliamentary Committee recommended in1999 that Parliament's power to imprison persons,
whether members or not who are in contempt of Parliament should be abolished.

But as far as the situation in India is concerned there exists constitutional contradictions as to
whether the Parliamentary Privileges are limited by Fundamental Rights. It has been held that
the transitional provisions in the first part of Article 105(3) and 194(3) are provisions
independent of Part III of Constitution and are therefore not controlled by Part III. 22 But as we
see, in the 'Reference Cove' n it has not been possible for Supreme Court to maintain this
proposition in to, as it questioned the theory that the exercise of the Legislature's right to punish
for contempt was absolute and uncontrolled as it held that any action of the Legislature was

20 http://www.thehindu.com/2003/11/14/stories/2003111401331000.html

21 As has been described by Mr. Johann .P. Fritz, Director of International Press
Institute

22 Pandit M.S.M Sharma V. Shri Krishna Sinha 1958 INDLAW SC 135

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examinable by the Court if it was violative of the fundamental right to freedom embodied in
Article 21 [right to life and personal liberty] of the Constitution.

The result is that this uncertain situation will continue, until the Supreme Court launches into
the area and clarifies its previous decisions which are conflicting and legislators come forward
to codify the privileges. Meanwhile the power of Parliamentary privilege can be subjected to
judicial scrutiny [judicial review] as every authority or power should be exercised within the
constitutional limits.

As Chief Justice (ret.) P.N. Bhagwati had put it "Every organ of the government, be it executive,
legislature or the judiciary, derives its authority from the Constitution and it has to act within
the limits of its authority. No one, howsoever highly placed, and no authority, howsoever lofty
can claim that it shall be the sole judge of the extent of its power under the Constitution."

A permanent solution is necessary as despite the Courts' earlier decisions matter has been raised
again and again. The seriousness of the matter also calls for an urgent need for codification of
Parliamentary Privilege as there is no other alternative. The legislators' reluctance to codify has
been attributed to the reason that it would mean limiting their powers; as the Court has made it
quite clear that if the Parliament or a State Legislative enacted a law under Articles 105(3) or
194(3) respectively to define its privileges then such a law would be subject to Article 19(1) (a)
and a competent Court could strike down that law under Article 13 of the Constitution if it
violated or abridged any of the fundamental rights.

Freedom of Press Areas of reasonable restrictions

Lord Denning in his book Road to Justice observed that press is the watchdog to see that every
trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose
and has to be punished for misbehaviour.

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The dangers of the unanalyzed discretion given to Lok Adalats have been recognised by some
States and pursuant to Section 28 of the Legal Services Authorities Act; Regulations have been
framed in relation to the conduct of Lok Adalats. The Kerala Regulations, 1998, framed by the
Kerala Legal Services Authority (KELSA), provide a model of good practice. Regulation 28
makes it mandatory for notice to be issued to the parties in a dispute in order to enable them to
prepare their case. This embodies the right to a fair hearing. Regulation 31 explicitly lays down
that the Bench is to restrain itself to a conciliatory role and make efforts to bring about a
settlement "without bringing about any kind of coercion, threat or undue influence, allurement
or misrepresentation". Under Regulation 33, the Bench is required to obtain the signatures of the
parties to the dispute, in addition to the signatures of the Members of the Bench. This
Regulation ensures that the parties are given adequate notice and are present during the
proceedings.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so

also it is necessary to place some restrictions on this freedom for the maintenance of social
order, because no freedom can be absolute or completely unrestricted. Accordingly, under
Article 19(2) of the Constitution of India, the State may make a law imposing "reasonable
restrictions" on the exercise of the right to freedom of speech and expression "in the interest of"
the public on the following grounds:

1. Security of the State,

2. Friendly relations with foreign States,

3. Public order,

4. Decency and morality,

5. Contempt of court,

6. Defamation,

7. Incitement to an offence, and

8. Sovereignty and integrity of India.

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Grounds contained in Article 19(2) show that they are all concerned with the national interest or
in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States and public order are all grounds
referable to national interest, whereas, the second set of grounds i.e. decency, morality,
contempt of court, defamation and incitement to an offence are all concerned with the interest of
the society.

As we concern with the restrictions imposed upon the media, it is clear from the above that a
court evaluating the reasonableness of a restriction imposed on a fundamental right guaranteed
by Article 19 enjoys a lot of discretion in the matter. It is the constitutional obligation of all
courts to ensure that the restrictions imposed by a law on the media are reasonable and relate to
the purposes specified in Article 19(2).

In Papnasam Labour Union v. Madura Coats Ltd. 23 the Hon'ble Supreme Court has laid down
some principles and guidelines to be kept in view while considering the constitutionality of a
statutory provision imposing restriction on fundamental rights guaranteed by Articles 19(1)(a)
to (g) when challenged on the grounds of unreasonableness of the restriction imposed by it.

In Arundhati Roy, In re the Hon'ble Supreme Court has considered the view taken by
Frankfurter, J. in Pennekamp v. Florida in which Judge of the United States observed: (US p.
366)

"If men, including judges and journalists, were angels, there would be no problem of contempt
of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists
would not seek to influence them. The power to punish for contempt, as a means of
safeguarding judges in deciding on behalf of the community as impartially as is given to the lot
of men to decide, is not a privilege accorded to judges. The power to punish for contempt of
court is a safeguard not for judges as persons but for the function which they exercise."

In Rajendra Sail v. M.P. High Court Bar Assn. the editor, printer and publisher and a reporter of
a newspaper, along with the petitioner who was a labour union activist, were summarily
punished and sent to suffer a sin months' Imprisonment by the High court. Their fault was that

23 1995 AIR 2200

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on the basis of report filed by a trainee correspondent, they published disparaging remarks
against the judges of a High Court made by a union activist at a rally of workers. The remarks
were to the effect that the decision given by the High Court was "rubbish" and "fit to be thrown
into a dustbin". In appeal the Supreme Court upheld the contempt against them, but modified
and reduced the sentence.

In D.C. Saxena (Dr.) , Chief Justice of India the Hon'ble Supreme Court has held that no one
else has the power to accuse a judge of his misbehavior, partiality or incapacity. The purpose of
such a protection is to ensure independence of judiciary so that the judges could decide cases
without fear or favour as the courts are created constitutionally for the dispensation of justice.

By these above observations and the judgment we can say that restrictions imposed by Article
19(2) upon the freedom of speech and expression guaranteed by Article 19(1)(a) including the
freedom of press serve a two-fold purpose viz. on the one hand, they specify that this freedom is
not absolute but are subject to regulation and on the other hand, they put a limitation on the
power of a legislature to restrict this freedom of press/media. But the legislature cannot restrict
this freedom beyond the requirements of Article 19(2) and each of the restrictions must be
reasonable and can be imposed only by or under the authority of law, not by executive alone.

Conclusion and Suggestions

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We have to remember that fundamental right of free expression also includes fair comment and
criticism and as has been pointed out by Chief Justice (ret.) P.B. Gajendragadkar the freedom of
expression of opinion "does not mean tolerance of the expression of opinions with which one
agrees but tolerance of the expression of opinions which one positively dislikes or even abhors."
Scrutiny of public figures by the fourth estate is a stipulation which cannot be done away with.
Basic issues relating to Article 19 (1) (a) personal liberties and the principles of natural justice
need to be settled. Existing privilege laws are a bit too ambiguous and expansive in nature as it
doesn't define what exactly constitutes a breach of privilege or Contempt of House. Hence there
is need to codify privileges.

"It is important to safeguard the freedom of speech and expression and the freedom of the press
as it is central to the survival of democracy," observed Mumbai High Court Chief Justice F T
Rebello.

It should not be forgotten that the press has a duty to show that it serves public interest at large.
It is also the essential duty of press to strike that proper balance between citizens right to
privacy and public's right to information vis-a-vis the role of media i.e. the press. The press
should show their functional accountability.

It has to be remembered that this freedom of press is not absolute, unlimited and unfettered at
all times and in all circumstances as giving an unrestricted freedom of the speech and
expression would amount to an uncontrolled licence. If it were wholly free even from
reasonable restraints it would lead to disorder and anarchy. The freedom is not to be mis-
understood as to be a press free to disregard its duty to be responsible. In fact, the element of
responsibility must be present in the conscience of the journalists. In an organised society, the
rights of the press have to be recognised with its duties and responsibilities towards the society.
Public order, decency, morality and such other things must be safeguarded. The protective cover
of press freedom must not be thrown open for wrong doings. If a newspaper publishes what is
improper, mischievously false or illegal and abuses its liberty it must be punished by Court of
Law. The Editor of a Newspaper or a journal has a greater responsibility to guard against
untruthful news and publications for the simple reason that his utterances have a far greater
circulation and impact then the utterances of an individual and by reason of their appearing in

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print, they are likely to be believed by the ignorant. Therefore, certain restrictions are essential
even for preservation of the freedom of the press itself. To quote from the report of Mons Lopez
to the Economic and Social Council of the United Nations "If it is true that human progress is
impossible without freedom, then it is no less true that ordinary human progress is impossible
without a measure of regulation and discipline". It is the duty of a true and responsible journalist
to strive to inform the people with accurate and impartial presentation of news and their views
after dispassionate evaluation of the facts and information received by them and to be published
as a news item. The presentation of the news should be truthful, objective and comprehensive
without any false and distorted expression.

Further, due regard has to be given to the recommendations made by the National Commission
to Review the Working of the Constitution [NCRWC]. They have recommended the inclusion of
freedom of press-media under Article 19(1) (a). Recommendations have also been made with
the intentions to protect journalists and professionals, from being compelled to disclose
information received in confidence except when required in public interest and also against a
charge of contempt of Court by permitting truth as a defense.

At this juncture, as we are approaching the sixth decade of our freedom, let's keep in mind the
pertinence of freedom of press and what our former Prime Minister Rajiv Gandhi had said about
press freedom:

"Freedom of Press is an Article of Faith with us, sanctified by our Constitution, validated by
four decades of freedom and indispensable to our future as a Nation."

Thus we can say the judiciary and media bodies seem to on the same wavelength. Both want the
press free from governmental interference, neither are opposed to regulations but both are
averse to restrictions on freedom of press. What is required is a consultation with these market
players and the public, keeping the primary objective of informing the public in mind and the
formulation of a viable policy

World opinion is divided on the importance of having a free press, according to a poll conducted
for the BBC World Service. Of those interviewed, 56% thought that freedom of the press was
very important to ensure a free society. But 40% said it was more important to maintain social

~ 25 ~
harmony and peace, even if it meant curbing the press's freedom to report news truthfully.
Pollsters interviewed 11,344 people in 14 countries for the survey.

In most of the 14 countries surveyed, press freedom (including broadcasting) was considered
more important than social stability.

Suggestions
In democracy, the Government cannot function unless the people are well informed and free to
participate in public issues by having the widest choice of alternative solutions of the problems
that arise. Articles and news are published in the press from time to time to expose the
weaknesses of the governments. The daily newspaper and the daily news on electronic media
are practically the only material which most people read and watch. The people can, therefore,
be given the full scope for thought and discussion on public matter, if only the newspapers and
electronic media are freely allowed to represent different points of views, including those of the
opposition, without any control from the Government. The following suggestions are offered in
this connection:

1. Freedom of press may be inserted as a specific fundamental right under Article 19 of the
Constitution of India.

2. Parameters of freedom of press should be clearly earmarked.

3. Information must be available at an affordable cost within specified, definite and

reasonable time limits.

4. Free press should not violate right to privacy of an individual.

5. Free press must be law enforcing and preventive of crime.

6. Rule of law must be followed by the free press.

7. Influence through free press upon the judiciary should not be exercised.

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 Bibliography
1. http://www.projectsmonitor.com/detailnews.asp?newsid=7175
2. http://www.worldpressfreedomday.org/
3. http://www.nowpublic.com/life/free-press-important-bbc-poll-shows-0
4. http://en.wikipedia.org/wiki/Freedom_of_the_press - India
5. http://en.wikipedia.org/wiki/Freedom_of_the_press_in_the_United_States
6. http://www.rsf.org/index.php?page=rubrique&id_rubrique=2
7. http://en.wikipedia.org/wiki/Press_Freedom_Index

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