NALSAR Project

Freedom Of Speech and its linkage to media under Indian

constriction- a review

P.G Diploma in Media Laws

Module 1

Submitted by

B. Phanindra Kumar

MLH20_07

NALSAR Proximate Education,

NALSAR University Of Law, Hyderabad.

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Contents

Topic Page
Number
Table Of Cases 3

Table Of Statutes 4

Introduction 5

Research Methodology 6

Freedom Of Speech- A Fundamental Right 7

Press Legislation which curbed freedom of speech and expression 8

during pre-independence period

Need for Freedom Of press in India 9

Precensorship 10

Unethical Journalism in the name of public interest 11

Reasonable restrictions 12

Critical analysis of reasonable restrictions 16

Role Of the Electronic Media 20

Commercial Freedom: Freedom to advertise 21

Conclusion 22

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Table Of Cases

Case Page
Number
Indian Express v/s Union Of India 9

MSM Sharma v/s Sri Krishna Sinha 9

Brij Bhushan v/s State Of Delhi 9

Virendra v/s State of Punjab 10

Kishori Mohan v/s State of Punjab 13

Omprakash v/s Emperor 13

Benette & Coleman v/s Govt. Of India 17

The State of Karnataka v/s Puttaraja 19

Hyde Part Residence v/s Yelland 20

Ramesh v/s Union Of India 20

LIC of India v/s Supreme Court

21
Hamdard Dawakahan v/s Union Of India

Tata Press Ltd. v/s Mahanagar Telephone Ltd. 21

Table of Statutes

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1
1. Lord Welleysley’s Act 1799
2. India Press (Emergency) Act 1931
3. Press Act 1857
4. I.P.C 1860
5. Press and Registration Of Books Act 1867
6. Vernacular Press Act 1878
7. Official Secrets Act
8. Defence Of India Act
9. Punjab Safety Act, Sec.7
10.Sec. 292 to 294 of I.P.C
11. Contempt Of Court 1975
12.Defamation IPC 499 A
13.Sedition

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INTRODUCTION:

The main aim of the current project “Freedom of Speech” is to give a complete picture about the
‘Right to Freedom Of Speech and Expression’ guaranteed to every Indian citizen under Art.19 1 (a)
and the reasonable restrictions which are mentioned in clause 2. This project acts as an index to
anyone wanting to know the Freedom of Speech in India and its linkage with the media. Indian
constitution which guaranteed the right to freedom of speech never mentioned about the ‘freedom of
Press’. So, we can understand that the Government does’ nt not sanction any special status of freedom
to the press in India. When the fundamental rights were cancelled ruing emergency, the press was
forced to undergo pre-censorship. Though the Indian Press shares the fundamental right, it cannot
cross certain limits. Keeping the same in view, sub clause 2 has been added to Art. 19 1 a, which
mentions about the restriction of freedom of expression for certain reasons which includes Sediton,
Contempt Of Court, Defamation, Official Secrets, Defence Of India and so on.

This project besides telling the importance of freedom of speech, also tells us about the morals and
ethics of any press before exposing sensitive data to the public in the name of public interest.

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Research Methodology:

The reason behind selecting this subject is basically because of my interest in the fundamental rights.
Freedom of Speech in relation to media is very essential. However, sometimes if exclusive freedom is
given to the media many unknown and unexpected disturbance may occur. Especially in a country
like India, media can goto any extent to get the TRPS and incase if there are no restrictions then
media would also become a threat to the society.

This project aimsat giving a basic information to any reader to know about the freedom of the press
and expression as mentioned in the Art. 19 (1) (a) and the reasonable restrictions mentioned in the
19(2).

There are methodologies adopted by me. First one being a fundamental research methodology which
aims to give basic information about freedom of expression and second one an applied research
methdology has been adopted, thereby giving citing several case laws and their relation with the
current topic.

The methodology adopted by me gives a clear idea about freedom of expression and its relation with
the Press. It also helped me in discovering several things like freedom of advertising is also a freedmo
of expression.

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Freedom Of Speech- A Fundamental Right

Freedom to express one’s thoughts and freedom to speak is a basic human right without which
anyone’s life will be meaningless. Keeping the same in view Indian Constitution included freedom of
speech as a basic fundamental right in Article 19 (1) (a)

It is a prerequisite to the enjoyment of all human rights. Where it is suppressed other human rights
violations follow. Freedom of expression has been variously described as crucial for the freedom to
develop and discuss ideas in the search for truth and understanding (sometimes evoked as the
‘marketplace of ideas’), autonomy and self fulfillment of the individual, and effective participation in
the political life of a democratic society. Article 19 of the Universal Declaration of Human Rights
considers freedom of expression as a cornerstone right one that is essential for other rights to be
protected and exercised. The full enjoyment of the right to freedom of expression is central to
achieving individual freedoms and developing democracy. It makes electoral democracy meaningful
and builds public trust in administration. Freedom of information indirectly holds the government
accountable to the society. This provision of UDHR allows the individuals to seek, receive and impart
any idea or information regardless of frontiers

Provisions For Freedom Of Speech as mentioned in the Indian Constitution:

Indian Constitution guarantees certain fundamental rights to any citizen of India. Freedom Of Speech
and expression is also one among those fundamental rights as mentioned in the Part Three. These
rights, unlike another justifiable rights are protected by way of an application direct to the Supreme
Court under Art.32, which itself is included in Part three. Freedom Of Speech is one right which is not
only implies to the citizens of India but also to the Press as there is no separate right or provision
made in the name of ‘freedom of press’.

Suspension of Fundamental Rights and Press During Emergency

"The period between 1975 and 1977 was the most difficult phase for journalists. Such a situation had
not been witnessed even during the British rule” 1

Under emergency powers ( mentioned in Art 352, Art. 356, Art.360) these fundamental rights can be
suspended during emergency period.

Such a situation has happened when Late Smt. Indira Gandhi, the then prime minister of India
declared financial emergency. All citizens were forced to under go family planning operation. All
their fundamental rights were taken back through constitutional amendment. Military came into

1
L.K Advani expressing his views on emergency, to The Times Of India on 2nd November 2002

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the rule and many questioned how far it is fair to balance economic justice and social liberty. Press
was asked not to publish any information without submitting their stories for a pre-censorship.
Several news papers did not accept and agree for the same. Newspapers like ‘the Indian Express’ and
‘The Stateman’ marked their names in the History of Indian Journalism by oppising the Government’s
precensorship.

The Government withdrew the advertising support from these news papers for non cooperation.

The day after emergency was declared, The Financial Express edited by Narsimham published
Rabindrnath Tagore’s poem on freedom.

“None of the major English or Indian language dailies was suppressed, only the Indian Express chain
persistently struggled with the government,"2

However it has been observed that Vernacular press, struggled a lot and the magnitude was cleary
visble. The proprietor of Punjab Kesari, a Hindi daily, was detained.

“Of the 19 publications that remained banned for the entire Emergency, none was substantial and only
five were in English."3

During this period the government introduced legislation at will. In 1976, Prevention of Publication of
Objectional Matter Act was introduced. The Protection from Publication Act 1976 put control on the
publication of parliamentary proceedings.

As many as 253 journalists were detained and 51 journalists (43 correspondents, two cartoonists and
six photographers) were discredited. Emergency showed Indian media the condition of freedom of the
press in the country was and how limited the right to information was. It showed how elected
governments could turn into dictatorships and how even the law did not give the press shelter.

Press Legislation which curbed freedom of speech and expression during pre-independence
period

Lord Wellesley in 1799 brought in a legislation which made pre-inspection of all newspapers
mandatory and prescribed deportation for violation. After the Sepoy Mutiny, which is considered
India's first war of independence, in 1857, the British introduced the Press Act, 1857 which imposed
"rigorous control on the possession of printing material, and gave the government the power to

2
Quoted by Robin Jeffrey in India's Newspaper Revolution.
3
says the author in his book ‘regional press in India.’

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prohibit the publication and circulation of any particular newspaper, book, or other printed paper or
any newspaper of any particular description." Fortunately, the Act lasted for just one year.

In 1860, the Indian Penal Code introduced the offence of criminal defamation. It was amended to
include "offences against obscenity, defamation, sedition, the promotion of enmity between groups
and outraging feelings."

In 1867, the Press and Registration of Books Act was introduced and in 1878, "an Act for the better
control of publications in Oriental languages" was passed. This Act was called as Vernacular Press
Act.

"The vernacular press was forced to make deposits and was subjected to arbitrary powers of licensing
and search and seizure," 4

Meanwhile, the Official Secrets Act, the mother of all legislation against the right to information, took
shape in 1889 and was amended in 1904 and 1923.. From 1910 to 1913, for instance, 15 newspapers
were closed down because they were unable to make deposit after forfeiture. These laws did not
remain on paper.

Need for Freedom Of press in India

“ Freedom of Speech is bulwark of democratc government”5
After Legislature, Executive and Judiciary, Press is called as the fourth estate of any democratic
country. India being world’s largest democratic country should be given adequate freedom of speech.
In Indian Express v/s Union Of India6, it has been declared that the Press plays a major role in a
democratic state. It is the duty of the Legislature to uphold the Freedom of the Press, which has three
elements like
• freedom to access al sources of information7
• freedom to publish
• freedom to circulate8
4
Rajeev Dhavan’s story published in only the good news

5
A statement said by Louis Brandeis in Whitney v/s Clifornia, 247 US 214
6
Ind. Exp v/s Union Of India (1985) 1 SCC 641
7
M.S.M Sharma v/s Sri Krishna Sinha, AIR 1959 SC 395, 402

8
Ramesh Thappar v/s State Of Madras, 1950 SCR 594, 607

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In India unfortunately Press could not express its views to the fullest. For example, In Benette and
Coleman Co. v/s Union of India, maximum number of pages were cut down by the Court as the
company violated the provision of Article 19 (1) (a)
These ancient acts and laws are not just of academic importance in the context of Indian media in the
21st century _ they still loom large. Most of the laws relating to the media are archaic and made by
the colonial rulers with the purpose of muzzling dissent. For instance, in this cyber age, the Indian
Telegraph Act of 1885 is alive and kicking. The Act gives the "power to the government to take
possession of licensed telegraphs and to order interception of messages... on the occurrence of any
public emergency or in the interest of public safety."

Pre- Censorship
There are cases where precensorship was imposed on the Press not just during emergency times but
also during other times. For example, In Brij Bhushan v/s State Of Delhi9. The Organizer of the Press
was questioned regarding the validity of censorship and the Court truck down the Section 7 of the
Punjab safety Act, 1949, which directed the editor and publisher of a newspaper ‘to submit for a
scrutiny, in duplicate, before the publication, til lthe further ordersall communal mattersand news and
views about Pakistan, including photographs and cartoons”, on the ground that it was a restriction on
the liberty of the press. In the same way, prohibiting newspapers which publishes its own views or
that of correspondent’s about a particular topic has been said to be a serious encroachment on the
freedom of speech and expression. Virendra v/s State of Punjab and Express Newspapers v/s Union
Of India10 can be cited as best examples for the same.

Unethical Journalism in the name of public interest and freedom of speech

9
Brij Bhushan v/s Statw Of Delhi, AIR 1950 SC 129
10
AIR 1957 SC 896; AIR 1958 SC 578, 617

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Journalism today is really losing its essence. With more and more people steeping into media studies,
parents and teacher’s of these aspiring Journalists are looking at the profession as another best way to
become rich . Journalism is a noble and ethical profession and When a Journalists’s aim deviates
towards money, the news gets manipulated. In the name of public interest, today’s media especially
electronic media has been crossing its limits. Earlier, those following such cheap methods to make
money were looked down as yellow Journalists but now the scenari has been changing. Every other
page you see lavishing use of photographs, misleading headlines and sensationalism.

Sting operation
Infact, electronic media with its third eye (video lens) started capturing anything and everything
without a bit of hesitation. Most popular term ‘sting operation’ is what people today relate Journalism
with, which is so unfortunate. Sting operation is not Journalism. It is nothing but just crossing the
morals and ethics of Journalism in the name of ‘Investigative Journalism’. The word ‘sting operation’
is a deragatory statement to the investigative journalism itself and any true Journalist who believes in
balance and fairness will never opt for short cut methods that make him popular over night. No doubt,
most of the people will stick to their television screens when you telecast a sting but that cannot be a
reason to continue such hopeless stuff. Infact, many people will equally enjoy watching obscene over
the television if broadcasted and will that be justiciable enough to show such content in the name of
public interest. A journalist’s role is to bring out the news and tell the public about what is happening
besides he should make people feel that they should take responsibility in making the society a better
one. He should never motivate public and corrupt their minds through sensationalism and scooping.
Also, considering the Canada Supreme Court’s decision11, the Indian Government should come out
with new set of laws which gives exclusive powers to the Police, CBI, CBCID so that they can carry
out undercover operations and can avoid media, from carrying out operations like ‘operation
duryodhana’12, whose only aim will be TRP ratings.
There were also instances where the media went to broadcasting the MMS clips of some scandals
which is nothing but a defamation. There are four theories of Press like Authoritarian theory,
Liberterian theory, Soviet Union theory and Social responsibilty theory. Media, whether print or
electronic can follow any of these theories but if they create a new theory ‘money making theory’ then
the results will be very adverse. This new theory knows no laws, all they want is to make public fools,
corrupt yound minds and sell their news through sensationalism. A scrol ad of a vernacular media
which says ‘watch MMS scandal at 8 pm exclusive on your channel’, clearly shows that this theory
has already hit India.

Reasonable Restrictions:

11
John Campbell Salvatore Sirose v/s The Queen
12
A sting operation carried out by Cobra post and aajtak which captured 11 M.P s while taking bribe

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Freedom Of Speech guaranteed by the Indian constitution is subject to certain rules and regulations
which are called as reasonable restrictions. There are mentioned in the second chapter. These
restrictions should be reasonable, which is the prime element and that’s the reason why they have
been named as reasonable restrictions.

First reasonable restriction was amended in the year 1951 under 19(2). This reasonable restriction
took its birth from British Indian Government’s India Press (Emergency) Act 1931. This British
India’s act asked the Press to submit a security deposit with subject to the forfeiting of the amount if
the Press crosses certain limitations like
• Promoting hatred towards government
• Inciting and promoting any public servant to act irresponsible towards his duties
• Promoting hatred between communities
• Defaming the government
Now, the prevailing reasonable restrictions of 19(2) carries the same rule and in addition added a
few more restrictions like not to promote anything that would harm the sovereignty and integrity of
India besides it gave exclusive power to the court and no one has the right to criticise or write in their
newspapers commenting the judgement given by a Judge of any Court. The detailed explaination of
these reasonable restrictions is as follows:

1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on fredom of speech
and expression in the interest of security of State. The term "security of state" refers only to serious
and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not
ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus
speeches or expression on the part of an individual, which incite to or encourage the commission of
violent crimes, such as, murder are matters, which would undermine the security of State.

2) Friendly relations with foreign states: This ground was added by the constitution (First
Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious
propaganda against a foreign friendly state, which may jeopardise the maintainance of good relations
between India, and that state. No similar provision is present in any other Constitution of the world. In
India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens
against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the
suppression of fair criticism of foreign policy of the Government.

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It is to be noted that member of the commonwealth including Pakistan is not a "foreign state" for the
purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted
on the ground that the matter is adverse to Pakistan.

3) Public Order: This ground was added by the Constitution (First Amendment) Act. 'Public order' is
an expression of wide connotation and signifies "that state of tranquility which prevails among the
members of political society as a result of internal regulations enforced by the Government which
they have established." In Kishori Mohan v/s State of West Bengal, the Supreme Court explained the
differences between three terms Law and order, public order and security of the state. Whatever which
tends to disturbs public peace will in turn disturb public order.13

Public order is something more than ordinary maintenance of law and order. 'Public order' is
synonymous with public peace, safety and tranquility. The test for determining whether an act affects
law and order or public order is to see whether the act leads to the disturbances of the current of life of
the community so as to amount to a disturbance of the public order or whether it affects merely an
individual being the tranquility of the society undisturbed.
Anything that disturbs public tranquility or public peace disturbs public order. Thus communal
disturbances and strikes promoted with the sole object of accusing unrest among workmen are
offences against public order. Public order thus implies absence of violence and an orderly state of
affairs in which citizens can peacefully pursue their normal avocation of life. Public order also
includes public safety. Thus creating internal disorder or rebellion would affect public order and
public safety. But mere criticism of government does not necessarily disturb public order. In its
external aspect 'public safety' means protection of the country from foreign aggression. Under public
order the State would be entitled to prevent propaganda for a state of war with India.

The words 'in the interest of public order' includes not only such utterances as are directly intended to
lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing
utterances made with the deliberate intention to hurt the religious feelings of any class of persons is
valid because it imposes a restriction on the right of free speech in the interest of public order since
such speech or writing has the tendency to create public disorder even if in some case those activities
may not actually lead to a breach of peace. But there must be reasonable and proper nexus or
relationship between the restrictions and the achievements of public order.

4) Decency or morality: The words 'morality or decency' are words of wide meaning. Sections 292 to
294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and
expression in the interest of decency or morality and issues of obscenity in the context of media.
13
Om Prakash v/s Emperor, AIR 1948.

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These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places.
No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies
from time to time and from place to place.

5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it
exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2
'Contempt of court' may be either 'civil contempt' or 'criminal contempt.'

6) Defamation: A statement, which injures a man's reputation, amounts to defamation. For example If
A and B are two parties and due to some problesm or hatred between the both, if B tells ill about A to
C then A is said to be defamed. It means that if someone says ill about first part to the third party it
amounts to defamation. Every year many cases are filed under Defamatin mentioned in 1PC 499 A.
This defamation is of two types-

• Libel
• Slander
Libel means defaming the person through written words and slander means defaming the person
orally which means abusing the person.
Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to
defamation is still uncodified in India and subject to certain exceptions.

7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act,
1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit
offence. The word 'offence' is defined as any act or omission made punishable by law for the time
being in force.

8) Sedition: Sediton means defamaning the state through words, or writing which are calculated to
disturb the tranquility and peace of the State and lead ignorant person to damage the government14.
Even poems which advocates overthrowing the government will come under sedition and those
stories or articles or poems will be termed as seditious. It should be noted that the sedition is not
mentioned in clause (2) of Art. 19 as one of the grounds on which restrictions on freedom of speech
and expression may be imposed.

14
R.V Sallivan (1868) 11 cox cases 55

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Official Secrets Act

The Government Of India divided its documents into two section like Classified and Unclassified.
Unclassified cannot be communicated to anyone outside the government without a general or specific
order and all communications are through the government-run Press Information Bureau. Classified
documents are further categorized into Top Secret, Secret, Confidential and Personal. All these
documents are locked in for 30 years. And they are not released after the stipulated period as it
happens. The Act was amended in 1967 in order to make offence punishable with rigorous
imprisonments. Section 3 of the Act prohibits "approaching, inspecting or passing over or entering in
the vicinity of a prohibited place; or making a sketch, plan or model or note which is intended to be,
directly or indirectly, useful to the enemy."

It is also an offence "to obtain, collect, record, publish or communicate to any other person these
items or other document or information which is calculated to be or might be directly or indirectly,
useful to an enemy or which relates to a matter the disclosure of which is likely to affect the
sovereignty and integrity of India, the security of the state or friendly relations with foreign states."
The point to be noted: Following the British courts, ‘enemy’ is interpreted to include ‘political
enemy.’ When a government chooses to victimize a newspaper, it will not look elsewhere.
According to Section 4, it is unlawful to communicate with foreign agents or any person "reasonably
suspected" as foreign agent. Once again, foreign agent is a vague term. Section 5 relates to failure to
take care of all information "which has been entrusted in confidence to him (ie the accused) by any
person holding office under government, or which he has obtained or which he has had access owing
to his position as person who holds or has held a contract made on behalf of the government, or as a
person who is or has been employed under a person who holds or has held such an office or contract."
Voluntary reception, possession or contract of any such information is also an offence. This section is
also expanded to fit in any interpretation and cover, for instance, budget leaks.

Section 6 of the Official Secrets Act makes it an offence "to retain, communicate and manufacture
any secret code, password or any official document if it is kept for any purpose objectively
determined to the safety of the state."

In these sections, governments have found the caves to hide themselves and their actions. The
dangerous reach of the Official Secrets Act is evident in the fact that magistrates have the power to
issue search warrants if there is reasonable grounds of suspicion.

"The Official Secrets Act 1923 strides as a colossus declaring the symbolic aims of the government
and successfully using a traditional and archaic social psychology to camouflage the activities of the

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government," wrote Dhawan. If this all encompassing Act is not enough to protect the secrets of the
government of the people, there is Section 123 of the Indian Evidence Act of 1972. "No one
shall be permitted to give any evidence derived from any published official records relating to any
affairs of the state except with permission of the officer of the head of the department concerned, who
shall give or withhold the information as he thinks fit."

Successive committees instituted by the government ritualistically justified the shroud of secrecy.
"The Press Law Inquiry Committee in 1948 found the legislation was necessary and that no move
should be made to dislodge from the government its extensive and wide-ranging power to control the
flow of information," wrote Dhavan.

Critical analysis of reasonable restrictions

Besides all this legislation, the Indian Constitution grants the President a special "power to make
rules for the more comfortable transaction of the business relating to the government of India." These
rules were published till 1973 when they were declared confidential. During Emergency, Indira
Gandhi's government amended the constitution to prevent courts from having access to the already
constitutional rules. Another legislation that makes India a tough terrain to report is its defamation
laws. In the criminal law of defamation in India, the burden of proof is on the accused while in other
criminal cases the burden is always on the prosecution to prove the guilt of the accused. In the civil
law of defamation, where reputation is considered as property, too, the law is loaded against the
defendant. "The burden of proof rests on the defendant to prove that the statement if true and though it
is not necessary that the statement is literally true, he must prove that it is on the whole substantially
true,"15 writes constitutional expert Durga Das Basu in Law of the Press in India. So the complainant
gets an unfair advantage in India while in the US if a public servant is the defendant, the onus is on
him/her to disprove the report.

The judiciary is never on the media besides contempt laws are not that easy. The Contempt of Courts
Act (1971) literally dragged many journalists to the court for acts that "scandalises or tend to
scandalise, or lowers or tend to lower the authority of any court" or "prejudices or interferes or tend to
interfere with the due course of any judicial proceeding" or "interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of justice in any other manner." Governments in
India have tried several times to introduce new laws to control the media. The governments of Tamil
Nadu and Orissa enacted legislation against "grossly indecent or scurrilous matters or matter intended
for blackmail." Such non-bailable offences carried penalties of imprisonment up to five years.

15
Durga Das Basu writes in his book Law of The Press in India

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In 1982, the government in the state of Bihar tried to do the same. Police were given discretion to
arrest and the executive magistrate the power to determine questions of bail. Journalists boycotted
Parliament, protested and wore black badges, forcing the government to withdraw the legislation.

When they wanted to target the press, in fact, the governments did not need the help of the laws
formulated for the purpose. They slapped cases against newspapers that refused to budge, raided
publications when they wanted, as in the case of The Indian Express in 1987 when the paper was
publishing a series of report on the Bofors corruption scandal which allegedly involved the then prime
minister of India. The Newsprint Import Control Policy (1972-73) restricted the number of pages of
newspapers . Governments used its control over newsprint to make newspaper toe their line.
However, in the 1973 Bennett & Coleman vs Government of India case, Justice Ray ruled: "The
direct effect (of restricting number of pages) is that freedom of speech and expression is infringed."
Another method which the governments have used, effectively in the case of small newspapers, is
blocking government advertising. This was also extensively done during the Emergency.

When it came to television, the government's task was relatively easy. The government, till 1991, had
the monopoly and gave out the news it wanted to and bocked out the rest. India's government-run
channel, Doordarshan, has been a willing slave at the mercy of its master. So more often than not, the
world media overtook it even when the news broke in India. "Following Indira Gandhi's assassination
towards the end of 1984, the government media delayed announcing her death, which the country
learned from the BBC. It symbolized AIR's (All India Radio) and Doordarshan's lack of professional
independence,"16 says media critic Sevanti Ninan besides recollecting the demolition of Babri Masjid
which made the Doordarshan retreat "into news censorship" while CNN and BBC went to town with
it. One blatant incident of censorship on television happened in 1989 when the Doordarshan refused
to telecast an award-winning documentary on the Bhopal gas tragedy, Beyond Genocide. This despite
stipulation that all national award winning films have to be telecast.

The Gulf War brought in CNN and in 1991, Hong Kong-based Star TV made a silent entry and Indian
TV changed forever. The government lost its absolute control over the medium but clung to
Doordarshan. It realized that it needed legislation to retain control. In 1994, the government
promulgated an ordinance regulating cable TV. "The government introduced a must-carry stipulation
enjoining all cable operators to transmit at least two DD channels." The ancient Telegraph Act was
still the governing law for television until the Supreme Court of India ruled that "the broadcasting
media should be under the control of the public as distinct from the government." The government
rushed to formulate a Broadcasting Bill, it was finally introduced in Parliament in May 1997. Many
governments changed since then. As the present government debates whether to allow direct-to-home
16
Words of Sevanti Ninan, a media critic

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(DTH) technology, the bill for broadcasting reforms remains in deep freeze. So is the Information
Technology Bill which has India's cyber laws.

Today’s legislation has been allowing the government to give sufficient control to make even foreign
channels play to its tunes. The government bans programmes that it thinks do not go down well with
Indian culture. For instance, TB6, a Russian channel was banned all over India for obscenity. During
the Kargil war, Pakistan TV was banned. Even local authorities have the power to ban channels in
their territories. In Gujarat, district authorities have banned FTV, a fashion channel. With a Hindu
nationalistic party in power, such threat to TV channels, which are perceived to be agents of cultural
invasion, persist. Perhaps it is ironic that at a time when India tries to race ahead on the information
superhighway, matters pertaining to the government are sought-after secrets. In the US, the Freedom
of Information Act of 1966 threw open government records, with designated exceptions, to the public.
In India, several governments and ministers have spoken about the need for transparency in
governance but the Right to Information Bill never crossed the draft phase. The H.D. Shourie
committee that was set up in 1997 to prepare a bill submitted the draft to the government. Three years
have gone by.

In a delicate democracy so typical to the subcontinent, where the line between democracy and
dictatorship has blurred in the past, information is power. For the Establishment, it is a weapon of
oppression. For the other side, it is a tool against oppression. Behind closed doors, the governments of
developing democracies hide scandals and skeletons, knowing well that the doors don't open to the
outsider.

Each decision by the government of the day could be at the cost of the daily meal of a starving Indian
or at the right of the underprivileged. So any struggle against organized corruption, which is
institutionalized in the country, begins with the fight against this spiral of silence. For the officials and
the politicians, power is all about secrecy and inaccessibility. When everything that they do in the
name of governance is out in the open, they may no longer remain different from the class they rule.

The fight of the media in a developing country is, in fact, the fight for information. Strangely though,
there has not been an organized effort from the media to fight for their right to information. The fight
has come from the people. People of rural India, most of them poor and illiterate, are learning that
information is power. With the help of non-governmental organizations working in villages, they are
increasingly campaigning for more transparency in local administration. Corruption is easier at the
lowest level of bureaucracy as the people it encounters are not even able to read. Across India,

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rural movements for the right to information are gaining momentum and federal governments are
realizing that in the age of information technology, they cannot afford to hang on to an outdated
obsession. On May 1, the government of the western Indian state of Rajasthan passed the Right to
Information Bill. The bill gives the people access to official documents, except the classified ones.
However, several such bills are pending in different state capitals while in New Delhi, the government
lords over files like the last sentinel of a defeated empire.

New media, especially the Internet, and the rise of cable television are putting increasing pressure on
governments and officials to come clean, to state the facts. For example, when an Indian Airlines
plane was hijacked on December 14th 199917, the government kept quiet for a full 48 hours. It was
only when angry relatives began appearing on TV screens and front pages of the newspapers and in
one case, they barged into the Prime Minister's Office that the officials were shamed into giving
regular briefings. That these briefings were vague and ambiguous is a different story.

Over the last five years, judicial activism is one social force that has changed the mechanics of
governance in the country. Using a tool called the Public Interest Litigation; ordinary citizens have
been able to force Governments and government agencies to reply to questions, to come clean.
Which way these forces will work or whether they will evolve isn't clear yet. What is a fact is that
twenty-five summers after Indira Gandhi suspended democratic rights, the fears have not totally
disappeared. Indian Government can still suppress the media if it wants, especially those sections of
the media that are applicable.

If we look at the other side media also crossed its limits manier times. It is a known fact that Sec. 228
A of IPC imposes 2 year imprisonment with or without penalty for revealing the name name and
identity of the victim so that he is protected rom further victimization (based on Art. 21 which
guarantess right to privacy and right to reputation)18.

In the year 2003 Hyderabad’s media’s reporting on the ending of the lives of three woman in
metropolis prove the same. The visual media did not hesitate a second to show their bare dead bodies
on the television screens. This can also be termed as obscenity and there is a chance that it can disturb
the viewer and also very sensitive information which can depress anyone under the age of 18.

17
Indian Airline Flight IC-814 from Kathmandu to Delhi
18
The State Of Karnataka v/sPuttaraja, AIR 2004, Supreme Court 433, para 1

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Still photographs of Princess of Wales Diina with her boy friend Dodi Fayed and were allegedly
published in a newspaper. These photgraphs were taken from a secret security camera when they
visited Villa Windsor in Paris. The very next day they met with an accident and lost their lives.19

In United States, The Juvenile Justice (Care and Protection) Act 2000 attempts to safeguard the
children against invasion of privacy by providing penalty for reporting the identity of the child.

Role Of the Electronic Media

TAMAS, a film based on the novel of Bhisma Sahni was banned from screening as it violated Art.21,
Art 25 and Sec. 5B of Indian Cinematography Act20. However, Bombay Highcourt’s judges rejected
the plea when they saw this documentary and they found it to be very neat and contained no
excitement or incitement to offence nor contained the elements which would distrub the sentiments of
the public. Infact, they agreed with the High Court and gave the degree which says that there is no
harm to the public in watchign that movie and hence can be telecaste in television.

The words ‘freedom of speech and expression’ should be treated as freedom to market one’s own
views by words or by actions or by visble representations. Hence, television media which telecasts the
information can share the right to freedom of speech and expression.21

Commercial Freedom: Freedom to advertise

19
Hyde Part Residence Ltd v/s Yelland.
20
Ramaesh v/s Union of India, AIR 1988 SC 775
21
LIC of India v/s Supreme Court 554

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When a reder flips though the newspaper pages it is quite obvious that a reader find many
advertisements. Some in colour, some in black and white; a few covers quarter page besides a few
small ads. None the less, manier times a complete back page becomes an advertisment.

The Press Council, a body of ethics and principles mentions certain guidelines to maintain a
qualitative Journalism. This body mentions about advertisements too. More the number of
advertisements better the revenue, it is a known fact. However, the council says that a newspaper
should carry news and advertisements in the ratio of 60:40.

Any news paper should generate a revenue so that it can run its business full flegedly and it has an
equal freedom to advertise which forms a part and parcel of the Press freedom. Nevertheless, any
commercial advertisement has elements of trade and commerce which is intened to bring economical
gain to the advertiser. Hence all the advertisements will not be treated as a part of freedom of speech
and expression mentioned in the Article 19 (1) (a). In case if advertisments on drugs are banned and
restricted, it does’nt mean that it is a voilation of freedom of expression.22

The Supreme Court gave an interesting vrdict in Tata Press Ltd v/s Mahanagar Telephone Ltd 23,
stating that all advertisments, even its commercial will be considered as a part of freedom of speech
and expression and will be subjected to reasonable restrictions under Art 19(2).

Conclusion

22
Hamdard Dawakhana v/s Union Of India
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1995, 5 SSC 139

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Though there is no special provisions for Freedom of the press, the fundamental rights are being
looked upon and respected in our country. Freedom of speech and expression is one among those
basic rights, it has been euqally respected.

The freedom of the press and of the media in general is at the heart of the Charter of Fundamental
Rights guaranteed by the Indian Constitution to its citizens.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers.

Freedom of expression is one of the most important fundamental rights of any democractic country.
It has been protected by the Constitution as a fundamental right.

Right to freedom of expression should be the aim of any media. Our democracy is a "market place of
ideas and opinions" and we should make it happen in reality.. The freedom to express one's opinion –
either by words or by signs or by visible representations.. Because without freedom of information,
freedom of expression often remains meaningless.

Even if freedom of expression and freedom of information may appear self-evident, these freedoms
require constant confirmation. Freedom of expression and freedom of information should aim for
social development as it is the stepping stone for the development of a fair and democratic society.

Foot Notes

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• L.K Advani expressing his views on emergency, to The Times Of India on 2nd November
2002

• Quoted by Robin Jeffrey in India's Newspaper Revolution.

• says the author in his book ‘regional press in India.’

• Rajeev Dhavan’s story published in only the good news

• A statement said by Louis Brandeis in Whitney v/s Clifornia, 247 US 214

• Ind. Exp v/s Union Of India (1985) 1 SCC 641

• M.S.M Sharma v/s Sri Krishna Sinha, AIR 1959 SC 395, 402

• Ramesh Thappar v/s State Of Madras, 1950 SCR 594, 607

• Brij Bhushan v/s Statw Of Delhi, AIR 1950 SC 129

• AIR 1957 SC 896; AIR 1958 SC 578, 617

• John Campbell Salvatore Sirose v/s The Queen

• Om Prakash v/s Emperor, AIR 1948.

• R.V Sallivan (1868) 11 cox cases 55

• Words of Sevanti Ninan, a media critic

• Indian Airline Flight IC-814 from Kathmandu to Delhi

• The State Of Karnataka v/sPuttaraja, AIR 2004, Supreme Court 433, para 1

• Hyde Part Residence Ltd v/s Yelland.

• Ramaesh v/s Union of India, AIR 1988 SC 775

• LIC of India v/s Supreme Court 554

• Hamdard Dawakhana v/s Union Of India

• 1995, 5 SSC 139

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Bibliography

• http://usinfo.state.gov/products/pubs/principles/speech.htm

• Law of the Press by Durga Das Basu

• Module 1 of Nalsar Media Laws Course by Dr. Sridhar Acharyulu

• Civics text for Intermediate by Telugu Akademi, Andhra Pradesh

• http://timesofindia.indiatimes.com/articleshow/1582894.cms

• Indian Contitution by M.V Pylee

• Mass Communication in India

• Theory and Practice of Journalism in India by A.K. Agarwal

• The Professional Journalist

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