Has The Time Come To Review Press Freedom

The Indian law makers are being flooded with requests and suggestions from news agencies and rights groups from the world over to review the concept of press freedom in India following the latest scuffle between the Press and the Legislature-the fiasco involving the TN legislature and the reputed national daily 'The Hindu'. This article aims to throw light on the issue by taking the reader very briefly through the important events which led to the evolution of press freedom and its position in the present scenario.

The idea of freedom of press is on of those which has gained acceptance only in the recent past and which is still evolving. In fact it was only three centuries ago [on 24 th February 1703] , Daniel Defoe was fined 200 Marks and condemned to be pilloried three times, to be imprisoned indefinitely and to find sureties for his good behaviour during seven years for writing an anonymous pamphlet called "Shortest way with the Dissenters"[1702]. But then , it was the time when publishing a newspaper was considered illegal as it manifested an intention to commit a breach of peace.(1)

Gradually liberal views and ideas started gaining more importance. The growth of democratic polity and liberty of press were intertwined . Blackstonian concept of freedom of press which was expressed as early as in 1769 contained four basic points (2) Which still form the crux of the concept of press freedom.

They are as follows:
1.Liberty of the press is essential to the state.
2.No previous restraints should be placed on the publications.
3.That does not mean there is press freedom for doing what is prohibited by law.
4.Every freeman has the undoubted right to lay what sentiment he places before the public, but if he publishes what is improper, mischievous or illegal he must take the consequence of his own temerity.

In 1885 A.V.Dicey also wrote to the same effect. In simple words freedom of press is nothing but " the freedom of individuals to express themselves through the medium of press.

The freedom of press is not superior to that of the individual . In fact freedom of press is the right of every individual, every citizen of the country.

Freedom of press also found a place in the American Constitution which has been Greatly influenced by the English Common Law. An expressed provision was made for freedom of press in the Bill of Rights which was incorporated into the American Constitution by the First Amendment. This Amendment was largely influenced by section 12 of the Virginian Declaration of Rights in which press was described as "one of the great bulwarks of liberty which were not to be restrained by despotic governments". (3)

Blackstonian concept of liberty of press which lay in prior restraint and making it accountable on abusing the right , generally held the field.
Swedish Constitution is one of the few other Constitutions which has made expressed provisions for freedom of press in its Constitution. The law of freedom of press.

in Sweden which was first promulgated in 1810 was replaced in 1949 by an new Act which enjoyed the sanctity of being a part of the Constitution. Most of the Articles of Freedom of Press Act are to be found in the Constitutional documents of Sweden along with the Amendments made.

It is also a well known fact that the Scandinavian countries have always been in the vanguard of press freedom.

To a certain extent one can say that the debut of press in India was made with commercial interests in mind. It was the contribution of the first British MNC -The East India Company. It was one of those instruments of the British, which was later manipulated by the Indians to serve their interests ; as the role of the press under went a major change and it soon turned out to be one of the most effective weapons Indians had at their disposal during their struggle for freedom from the British. The press was always under the control of the company, but after its [press'] role reversal the necessity to clamp harsh curbs became imminent. Repressive laws were passed and judgements were given curbing press freedom. From there on ensued a struggle where the Indian leaders fought for their fundamental freedoms which included the freedom of speech and expression which covered freedom of press.

The Indian demand for a declaration of rights , on the lines of American Bill of Rights by which they were greatly impressed, in the Government of India Act 1935 was rejected by the Joint Select Committee of British Parliament. But the Indian leaders continued to demand these freedoms and also pledged from time to time t secure these freedoms in the written Constitution of free India. 4 Hence the absence of a provision explicitly incorporating freedom of press in the Draft Constitution surprised many , who considered it to be a great blemish on the Indian Constitution which was promoted as a 'progressive liberal Constitution'.

However, the Constituent Assembly thought that the freedom of press meant freedom of expression and no specific mention of the same was warranted. "The editor of a press is merely exercising the right of the expression , and therefor , no special mention of the freedom of press is necessary." (5)

An overview of the Constitutional provisions and other legislations regulating freedom of press

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."(6)

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 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." (7)
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."

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 Romesh Thappar v State of Madras (8) the Supreme Court struck down as violative of 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 v State of Delhi (9) 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 re 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 be worded in general terms and was declared ultra vires 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. (10)

Brij Bhushan v State of Delhi (11) also dealt with the question of validity of censorship . It was held that such censorship on a journal previous to its publication would amount to infringement of Article 19(1)(a).

The Supreme Court held in the Auto Shanker case that the government has no authority in law to impose a prior restraint upon publication of defamatory material against its officials. (12) The Court also observed that to propagate ones ideas every citizen has a right to publish, disseminate and circulate them to reach any class and any number of readers subject of course to the limitations permissible under a law competent under Article 19(2).(13).

Freedom of press is also both qualitative and quantitative . (14)The view of the Courts regarding press freedom can be summed up as follows:
"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." (15)

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. But this immunity does not apply to the publication of a report of a secret sitting of a house.

Prior to the amendment this protection was given only by a parliamentary law-Parliamentary Proceedings (Protection of a Publication) Act ,1956.

But the legal implications arising out of the concept of 'press freedom' are many and hence they are not confined to the constitutional provisions alone. The different aspects of it infringe inter alia on criminal law , law of contempt, Copyright Act , Official Secrets Act, Freedom of Information Act, Law of torts, Prevention of Insults to National Honour Act etc , to name a few.

These laws deal with different issues like those of decency or morality, the issue of privacy Vs right to information, defamation etc. Issues arising due to investigative reporting are also dealt with by these laws. There are also exclusive press laws like Working Journalists Act, Press Councils Acts, Newspapers Act, Press and Registration of Books Act etc. The Press Councils Act created the quasi judicial body- Press Council of India.

Article 19 of Universal Declaration of Human Rights is also recognized and followed in India, which states that:

"Every one 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."

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 has 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 defence department involving ex -defence Personnel's and central government ministers . 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 (16) 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" (17), 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 not 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 . (18)But as we see , in the 'Reference Case' ,(19) it has not been possible for Supreme Court to maintain this proposition in toto, 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 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. Mean while 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 (retd.) 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) or194(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.(20)

Conclusion
On analyzing the latest developments conclusion can be drawn that the latest issue was a misadventure , occurrences of the like we have to stop at all costs. 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(retd) 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 the need to codify privileges.

The issue of 'pre-licensing' in a different form has gained relevance recently; although at present it is confined to U.S.A. This question gained importance with the request by White House to use 'judgement' before airing any news following the 'attempts' by terrorists to use international media to facilitate their activities. Perhaps 'judgement' is another name for 'controlled freedom of press'. But there is no freedom to destroy freedom. Freedom carries with it certain responsibilities and it would only lead to its suicide if its allowed to degenerate itself into a license.

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 citizen's right to privacy and public's right to information vis-à-vis the role of media i.e. the press. The press should show their functional accountability.

Further , due regard has to be given to the recommendations made by the National Commission to Review the Working of the Constitution [NCRWC]. (21)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 defence.

At this juncture , as we are approaching the sixth decade of our freedom , lets 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."

(*This is article is for general information only )

Reference:
1.According to Sir .William Scroggs who became Lord Chief Justice in 1678 (UK); Freedom of Press Some Recent Trends(1987) by E.S.Venkataramiah; pg 13 para 1.
2. Press and the Law (1990) by Justice A.N.Grover; pg 7 para 2
3. www.law.cornell.edu/constitution/constitution.overview.html
4. Freedom of Press Some Recent Trends (1987) by E.S.Venkataramiah; pg 18-19
5.Dr.Ambedkar's speech in Constituent Assembly Debates, vii-980.
6.Vide Author's Commentary on the Constitution, 6th Ed,Vol C, pg 95-97; Indian Express v Union of India(1985) 1 SCC 641
7.In re , Harijai Singh ,(1996) 6 SCC 632; AIR 1995 SC 264
8.AIR 1950 SC 124
9.AIR 1950 SC 129
10. ibid
11. ibid
12.R.Rajagopal v State of T.N;(1994) 6 SCC 632
13. Sakal Papers v Union of India; AIR 1962 SC 305
14.Bennett Coleman and Co v Union of India ; AIR 1973 SC 106
15. Indian Express Newspapers v Union of India; (1985) 1 SCC 641
16.http://www.thehindu.com/2003/11/14/stories/2003111401331000.html
17. as has been described by Mr.Johann .P.Fritz, Director of International Press Institute
18. Search Light case; Sharma v Sri krishna;A.1959 SC 395
19. AIR 1965 SC 745
20. Search Light case
21. www.lawmin.nic.in/ncrwcfinalreport/volume1.html

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