Freedom of press: Constitutional perspective

Media determines its rights from Article 19(1)(a) of the Indian constitution i.e. Freedom of discourse and articulation.

19(1) All nationals should have the right. (a)to the right to speak freely and articulation, The exemptions to the privilege ensured under article 19(1)(a) are contained in article 19(2) which made nothing in sub proviso (an) of condition (1) might influence the task of any current law, or keep the state from making any law, in so far all things considered law forced sensible limitations on the activity of the privilege gave by the said sub-provision in light of a legitimate concern for the power and respectability of India, the security of the state, agreeable relations with outside states, open request, fairness or profound quality, or in connection to hatred of court, maligning or induction to an offense. The media gets its rights from the privilege to the right to speak freely and articulation accessible to the residents. Along these lines, the media has similar rights no more and no less any person to compose, distribute, flow or communicate.

However, 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 press in the interest of the public on the following grounds: -1. Sovereignty & Integrity of India 2. Security of the State 3. Friendly relations with Foreign States 4. Public Order 5. Decency or Morality 6. Contempt of Court 7. Defamation 8. Incitement to an Offence

Because of reasonable restrictions contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide.

In PrabhuDutt vs. Union of India the Supreme Court has held that the right to know news and information regarding administration of the Government is included in the freedom of press. But this right is not absolute and restrictions can be imposed on it in the interest of the society and the individual from which the press obtains information. They can obtain information from an individual when he voluntarily agrees to give such information.

In PapnasamLabour Union vs. Madura Coats Ltd. the Hon’ble Supreme Court has laid down some principles and guidelines to be kept in account 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 Rajendra Sail vs. M.P. High Court Bar Assn. the editor, printer and publisher and a reporter of a newspaper, along with the petitioner who was a labor union activist, were summarily punished and sent to suffer a six months’ imprisonment by the High Court. Their fault was that on the basis of a 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 CURRENT SCENARIO OF PRESS FREEDOM AND LAW

Press is regarded as one of the pillars of democracy as it acts as a watchdog of the three organs of democracy. Though, freedom of speech & expression (including of press) is enjoyed by the citizens but there are many instances where the press has to face difficulties as well. In the recent past, in the Tehelka Case, the portal Tehelka.com was forced to shut down completely & its journalists were continuously harassed as the journalists exposed the ‘scam’ in the defense ministry involving Ex Defence Personnel & Central Government Ministers. There are many instances where journalists were threatened & even assaulted at times.

1. Morality and Decency

One of the restrictions imposed on right to freedom press is in the interest of ‘morality’ and ‘decency’. There are several legislative provisions governing these two elements. Apart from these provisions there are some judicial decisions also.

These two terms have no specific meanings. These change according to the value system of a given society. It changes from one generation to another; and also from one Judge’s perspective to another.

In Chandra Kant KalayandasKakodkar v. State of Maharashtra, the Supreme Court observed that such notions vary from country to country depending on their moral standard. But even within the same country, like India as you cross a few hundred kilometers, morality changes at varying lengths. This makes it very difficult to straight jacket these concepts.

Relevant legal tools:

  • The Indian Penal Code, 1860, section 292 – 294 makes the sale, letting to hire, distribution, public exhibition, circulation, import, export and advertisement of obscene material an offence punishable with imprisonment and fine.
  • The Dramatic Performances Act, 1876, Preamble Section 3 (c): section 6 gives the government the power to prohibit public dramatic performances on the ground of obscenity and in case of violation imprisonment and fine follows.
  • The Post Office Act 1898, Section 20: prohibits the transmission by post any material on the ground of decency or obscenity.
  • The Cinematograph Act, 1952 – section 5 B prohibits the certification of a film by the Censor Board for Public exhibition of the film or any part of it is against the interest of morality and decency.

2. Vulnerable Matters

An ordinary citizen needs to know subjects and events of public interest. This right does not however go to the extent of knowing the name of the rape victim or family problem of a public figure. This information do not fall within the category of newsworthiness of the news. It was stated in State of Punjab v. Gurmit Singh, that the identity of rape victims should be protected not only to save them from public humiliation but also to get the best available evidence which the victim may not be in a position to provide if she is in public.

In People’s Union for Civil Liberties v. Union of India the Supreme Court further upheld the validity of section 30 of the Prevention of Terrorism Act, 2002, regarding holding of in-camera proceedings for the protection of a witness whose life is in danger. In these cases, the identity and address of the witness is kept secret. There are so many enactments providing in-camera procedures and protection of the identity and other details of persons associated with the case. So it is implicit in the Indian Law that private and confidential matters in certain cases should be given utmost protection.

Relevant legal tools:

  • The Indian Penal Code 1860, section 228-A- prohibits publication of the name of a victim of a sexual offence. Fair comment is allowed.
  • Indian Divorce Act 1869, Section 53 – Proceedings under the Act may be heard behind closed doors in certain circumstances.
  • The Special Marriages Act 1954, section 33 – In-camera proceedings- if either party desires or Court decides.
  • The Official Secrets Act 1923, section 14 – empowers the Court to exclude the public from proceedings if prejudicial to the safety of the state, subject to section 7.

3. Contempt of Court

Contempt of Court happens not just when judges are criticized but also when matters which are sub-judice are discussed and criticized in the press. This results in lowering the role of the judiciary in the administration of justice. When the issue is before the Court, it is considered the duty of the media to allow the course of law to take place.

They can report the matter in Court in a fair manner and not critically. They should wait for the final outcome of the case. This is the object behind the reasoning given by the Court in Rajendra Sail v. M.P.High Court Bar Association. The Supreme Court warned the media against sensationalizing of the issues and stressed that the press needed a strong internal system of self-regulation. It said that the reach of the media is very large and large numbers of people believe its reporting to be true. This freedom of the press should be exercised in the interest of the public good. Court also stated that the press should have an efficient mechanism to scrutinize the news reports pertaining to such institutions such as judiciary, which because of the nature of their office cannot reply to publications.

4. Sedition                    

Section 124A of the Indian Penal Code deals with the offence of sedition. It lays down that,” Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”. But Explanation 3 says “Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”. In Devi Saran v/s State AIR 1954 Pat 254, the Court has held that Section 124A imposes reasonable restriction on the interest of public order & therefore it is protected under Article19 (2) of the Constitution.

The time has come for the press of largest democracy of the world to work with hand-in-hand with judiciary for the welfare of its subjects. The day is not far away when there will be no eclipse of injustice & the sun of justice will shine brightly forever.

 

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Anukriti 
on 21 January 2020
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