Monday, April 19, 2010

Write a critique on the concept freedom of press vis-à-vis the Constitution of India.

Indians fought for Press Freedom from the British for almost a century and a half but when they wrote their own constitution they failed to secure these freedoms in the written Constitution of Free India in clear terms. The absence of a provision explicitly incorporating freedom of press in the Draft Constitution surprised many, who believed those who promoted it 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 therefore, no special mention of the freedom of press is necessary."

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In Indian Constitution, Article 19(1) (a) guarantees the Right to Freedom of Speech and Expression. It has been held that Press Freedom is an implied or deduced right. Freedom granted under Article 19(1) (a) is restricted by the limitations mentioned in Article 19(2) which provides that the guarantee of the above right would not affect the operation of any existing law 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. Interestingly the very first amendment was about restricting the Freedom of Expression under Article 19 (1) (a).  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 even as the term 'defamation' was dropped. 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".

Article 19(2) was further amended by 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."

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The silver lining in our case was that 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 the Supreme Court struck down as violative of Article 19(1) (a), the Madras Maintenance of Public Order Act 1949 which 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).

In R.Rajagopal v State of T.N; (1994) 6 SCC 632 the Supreme Court held that the government has no authority to impose a prior restraint upon publication of defamatory material against its officials. 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 to the limitations under Article 19(2).

The courts have saved the Press from the indirect efforts of the executive to check Press Freedom. In the Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 a disingenuous attempt was made to stifle press freedom through the machinery of the import control regulations by imposing severe restrictions on the import of newsprint . Bennett Coleman, amongst other newspapers, challenged the import control policy. Nani Palkhivala represented on behalf of the Press. The majority judgment of Justice A.N. Ray wrote: “Newsprint does not stand on the same footing as steel. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man”.  The Court struck down the restrictions. This judgment is another instance of the generous protection accorded to press freedom by our judiciary.

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 any authority 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.

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The 44th Amendment [1978] of the Constitution also provides for constitutional protection for journalists. Article 361-A which 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 of a substantially true report of any proceedings of either house of Parliament or the Legislative Assembly unless publication is proved to have been made with malice. This immunity does not apply to the publication of a report of a secret sitting of a house.

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Other Laws Affecting Freedom of Press:

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 Honor 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.

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Current Scenario:

The most recent serious controversy which brought the perennial problem 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 was 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.

Though the powers of the house under Parliamentary Privilege are being declared "insult laws", condemned and scrapped in most of the nations, they continue to come back time and again to haunt the Press. Even in England from where we learnt these Privileges a Joint Parliamentary Committee recommended in 1999 that Parliament's power to imprison persons, whether members or not who are in contempt of Parliament should be abolished.

The Threats:

There are three standing threats to press freedom :

    The law of parliamentary privilege
    The Speaker's censorship of the press and
    Section 199(2) of the Code of Criminal Procedure, 1973

Three cases  decided by constitution benches of the Supreme Court of India (in 1952, 1958 and 1965) have laid down the contours of the law concerning parliamentary and legislative privilege in India and their impact on press freedom. But they have not been uniformly consistent.

In the first instance, in March 1952, when a journalist Homi Mistry was arrested in Bombay and taken in custody to Lucknow, to be produced before the Speaker of the Uttar Pradesh Legislative Assembly to answer a charge of breach of privilege, a constitution bench of the Supreme Court set him free since it was a breach of one of his fundamental rights: Article 22(2), that no person shall be detained in custody (beyond a period of 24 hours) without the authority of a magistrate. Fundamental rights, the bench of five judges said, would override legislative privilege.

But when some years later (December, 1958), one M.S.M. Sharma, editor of an English language newspaper, Searchlight, was called upon by the Speaker of the UP Legislative Assembly to show cause why he should not be proceeded in contempt of the House for publishing expunged portions of a member’s speech, a constitution bench of five judges (by majority 4:1) refused to interfere. This was the second incident. The Supreme Court ruled (5-1) that the privileges of India's legislatures prevail over the fundamental rights of its citizens on the reasoning that "the provisions of Article 19(1) (a) (the fundamental right to freedom of speech and expression), which are general, must yield to Article 194(1) which is special". Chief Justice S.R. Das overlooked the obvious fact that what he discussed as "general" was a mandate whose violation would render even acts of Parliament, passed unanimously, void. The parliamentary/legislative privilege triumphed over freedom of speech and of the Press.

In the third case — in Keshav Singh (1965) — a special constitution bench of seven judges of the Supreme Court (in a presidential reference) reaffirmed the view expressed in the Searchlight Case (1959) — that Article 19(1) (a) could not be invoked when there was contempt of the legislature. But the court then went on to say (by a majority of 6:1) that though Article 105(3) and Article 194(3) of the constitution conferred upon the Houses of Parliament and state legislatures, the same jurisdiction with respect to their privileges as that of the House of Commons, they definitely did not incorporate the rule that the legislatures were also to be the final judges of those privileges: courts in India could and would scrutinise their decision under Article 21, especially since neither the Parliament nor state legislatures in India were possessed of the power that was enjoyed by ancient usage by the British House of Commons, that of a “High Court of Parliament”.

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In a country with a constitutionally guaranteed Bill of Rights the construction of Article 19(1) (a) and 194(3) in both the above cases was a grave mistake. Till then the understanding was that fundamental rights prevailed. In G.K. Reddy vs Nafisul Hassan AIR 1954 SC 636 the Supreme Court held that "the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any legislature in India, in the literal absolute sense" (page 864). The Deputy Editor Homi Mistry on whose behalf G. K. Reddy appealed was arrested in Bombay on a warrant by the Speaker of the U.P. Assembly.
The Supreme Court also mitigated the 1959 ruling in the U.P. Judges' case. The court ruled that (a) the fundamental right to move the Supreme Court for enforcement of the fundamental rights (Article 32) prevails over the privileges as does the High Court's writ power (Article 226). Both have the power to grant bail in the interim. Though the court dealt with the matter citing Article 21 and said that Article 19(1) (a).

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The Dilemma!

As far as India is concerned there exist constitutional contradictions as to whether the Parliamentary Privileges are limited by Fundamental Rights. The result: Uncertainty. The 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. There have been many suggestions after that including one by the Press Council of India urged codification of privileges "in the interest of the freedom of the press", the task remains unaccomplished as of till now.

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