By
GEETA NARULA*
"The restoration of free speech, free association and free Press is almost the whole Swaraj."
- Mahatma Gandhi
INTRODUCTION
A free and responsible media is universally and unanimously considered to be fourth pillar of the every democratic setup and is as essential for a healthy democracy as the legislature or the judiciary. There could be little doubt over the necessity of a free media for over all development of any community. The Media holds the mirror to society and is the powerful channel of communication. Hence, a special duty is imposed on the media; which is, to not only inform the general public of various issues and subjects but also at the same time to build their opinion and to reflect them in proper form. The freedom of media in simple words means the right to receive and collect information of public importance from all primary and authenticated sources and to disseminate it through all legitimate sources. [1]
The media, as an effective interface between the citizens and the representative institutions, plays a vital role for the growth of democracy. While drawing its strength from the political system, it also infuses strength and vitality into the system. The need, therefore, for an independent and free media to support the functioning of a vibrant democracy cannot be overemphasized. An informed society certainly contributes substantially towards creating
an informed democracy.
However in India, the absence of any constitutional provision directly touching the rights of media or press makes the role of media more important. It is interesting to note that the freedom of press or media is not a constitutional right specifically provided by the constitution of India. Infact, the Constituent Assembly thought that the freedom of press meant freedom of expression only 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."[2] It was the Supreme Court of India which recognized it as an implied fundamental right flowing from the right to speech and expression as contained under Article 19(1) (a). Hence to understand the status of freedom of press in India, it is necessary to quote the relevant case law here in which Indian judiciary emphasized the great value of the freedom of press in democratic society.
But before that it also necessary to state law
relating to free media as contained in the nternational conventions and in other countries for better understanding of the subject.
Article - 19 of Universal Declaration of Human Rights (UDHR), 1948; Article - 19 of International Covenant on civil and Political Rights (ICCPR) and Article 10 of European Convention of human Rights (ECHR) are notable in this regard which in clear terms include
the right to free media under right to freedom of opinion and expression. Article 13 of the American Convention on Human Rights, Article IV of the American Declaration of Rights and Duties of Man, Article 9 of the African Charter of Human and Peoples' Rights, Article 50 of the International Convention on Elimination of Racial Discrimination and Article 2, 12
and 13 of the Convention on the Rights of the Child also provide for protection of freedom of press/ media.
Emphasizing on the need for free and independent media the UNESCO-sponsored Mac Bride Commission (1980) in its report Many Voices, One World bserved : "Communication, with its immense possibilities of influencing the minds and behaviour of the people, can be a powerful means of promoting democratization of society and widening public participation in the decision-making process. This depends on the structures and practices of the media
and their management and to what extent they facilitate broader access and open the communication process to a free interchange of ideas, information and experience among equals, without dominance or discrimination. The development of democratized and
diversified media should provide larger opportunities for a real direct involvement of people
in communication process."
In America, The First Amendment to the United States Constitution provides that "Congress shall make no law...abridging the freedom...of the press." Although the First Amendment specifically mentions only the federal Congress, this provision now protects the press (Media) from all government, whether local, state or federal.
Commenting on the need for media in American politics, Js. Black observed that "In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell." [3]
Similarly, Swedish Constitution is one of the few other Constitutions which has made expressed provisions for freedom of press in its Constitution.
Coming back to Indian case law, in Romesh Thappar v State of Madras [4] and in Brij Bhushan v State of Delhi [5] the Supreme Court struck down as violative of Article 19(1) (a), certain provisions of the relevant Acts as they sought to impose restrictions on the freedom of press on the grounds outside the scope of Article 19 (2). Brij Bhushan v State of Delhi 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).
Sakal Papers Ltd. v. Union of India [6] In this case, The Supreme Court opined that, the right of freedom of speech and expression couldn't be taken away with the
object of placing restrictions on the business activity of the citizens. Freedom of speech can
be restricted only on the grounds mentioned in clause (2) of Article 19.
In K. A. Abbas v. Union of India [7] the petitioner for the first time challenged the validity of censorship as violative of his fundamental right of speech and expression. The Supreme Court however observed that, pre-censorship of films under the
Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture was able to stir up emotion more deeply and thus, classification of films between two categories 'A' (for adults only) and 'U' (for all) was brought about.[8]
Freedom of press is also both qualitative and quantitative [9]. 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." [10]
The Supreme Court held in the Auto Shanker case [11] that the government has no authority in law 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 of course to the limitations permissible under a law
competent under Article 19(2) [12]
Moving a step further, in Secretary, Ministry of I&B v. CAB [13], the Supreme Court clearly emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and
also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country. But, The free speech right guaranteed to every citizen of this country does not encompass the right to use these airwaves at one's choosing.
Conceding such a right would be detrimental to the free speech rights of the body of citizens in as much as only a privileged few - powerful economic, commercial and political interests - would come to dominate the media. By manipulating the news, views and information, by indulging in misinformation and disinformation, to suit their commercial or other interests, they would be harming - and not serving - the principle of plurality and diversity of views,
news, ideas and opinions.
This is fairly clear now that the term "Freedom of Speech and Expression", includes the liberty to propagate not only one's views but also the right to print matters which have been borrowed from someone else or are printed under the direction of that person and also includes the liberty of publication and circulation. Though restrictions as contained under
Article 19(2) are equally applicable to the media but it is primarily for the Media itself to determine what are its corresponding responsibilities and obligations.
As stated earlier, The Freedom of speech and expression is said to include the freedom of press also. However, with the increasing importance of imparting of information and its possible availability, press is not only a means of expression but is a mode of receiving information as well and a means of providing the 'right to know' to the people. Only an express incorporation of this freedom would ensure due exercise of other such rights.[14]
The crucial question is: media for whom and for what. Once this has been defined, a suitable structure can be formed to achieve those objectives. In a country like India where are so much of diversities and differences among people, the media has to provide right kind of information, highlight people's issues, promote understanding among diverse sections of
society and strengthen our democracy, pluralism and social unity. Further, Media also has the national responsibility to report successful outcomes of the legislatures to ensure good governance in system.
The choices before us are clear: should the media be market-driven in which information and entertainment are national commodities determined by the exchange value or media are natural institutes geared to democratic and development process. The other arguments could be: should the media become a mere tool to satisfy the consumerist drives of the urban elite or a source of enrichment and empowerment of the masses. Should the media be deep-rooted in the unique Indian civilizational ethos or promote a debased, derivative and ersatz culture. Should the media structure be top-heavy, top-down, vertical, centralized system or decentralized right upto the panchayat level, an integral part of the community involved in their life, problems and aspirations. Should the media have a homogenizing influence or be a
forum for a free inter-change of ideas, information and experience among equals, without
dominance or discrimination.
As early in 1974, Justice Stewart of the U.S. Supreme declared in the case of Saxbe V. The Washington Post Co.[15] that the press has only the same constitutional right to access to the information as that is available to the general public. Expressing the similar views recently, on 18 Dec, 2004, Supreme Court took a very strong note of the role of media. During the hearing of a newspaper's petition challenging the validity of Section 499 of the Indian Penal Code relating to defamation, a Bench of Justices Y.K. Sabharwal and D.M. Dharmadhikari referred to the recent controversy arising from the publication of the
photograph of the Bollywood stars in an intimate pose. It described such exposure both by the electronic and print media as 'not in good taste' and in no way can be in public good. The court clearly stated that "In the name of public good, the media can go on doing whatever it intended to do." [16]
Conclusion:
Gone the time when publishing a newspaper was considered illegal as it manifested an intention to commit a breach of peace. Freedom of thought and the right to information are a fundamental human right. Free flow of information and ideas, effectuated by newspapers, magazines and journals, radio, television, and now the Internet, pulls down the most elaborate
barriers for self-protection erected by authoritarian regimes of all ideologies and labels. The
triumphant march of democracy in several parts of the world in recent decades was catalyzed, largely, by the media. Responsibility is the flip side of freedom. The media commands an extraordinary power to do good or bad, because of its capacity to influence events and minds.
Therefore, the media cannot be value-neutral. It must reflect a strong sense of social responsibility, and an ability to distinguish between right and wrong. If the media expects - and rightly so - accountability from governments, political parties, businesses and private individuals, it too must offer itself to be judged by the same norms of accountability. Beyond
the minimum reasonable restrictions imposed by any democratic country, it is entirely up to the media organizations, and the people working in them, to define the content and contours of responsibility. News, entertainment, and other products of the media are not like other commodities in the market. Sensationalism and other tactics to "sell" them with the sole motive to maximize profits militate against the very essence of journalism. On the other hand,
self-monitoring, self-regulation and, when necessary, even self-censorship, enhance the credibility of the media, which is its most precious asset. The Press has played a vital role in the development of an individual and society in the modern world. As mass media, the Television and the Radio have their own distinctive qualities and influence. An alert and
fearless print media is indeed the keeper of the public conscience.
Further, this freedom of press is neither a proprietary right of the publishers nor a privilege of
journalists; it is the right of the people to be informed. A free press must be accountable to
the public, but not to government,
I would conclude this discussion with the recommendations made by the National Commission to Review the Working of the Constitution [NCRWC] headed by Js. (Rtrd) M.N. Venkatachaliah under Chapter 2 Point 3.8.1 on Freedom of Press and Freedom of Information which says,
"Article 19 (1) (a) refers to 'freedom of speech and expression'. It is proposed that the article must expressly include the freedom of the press and other media, the freedom to hold opinion and to seek, receive and impart information and ideas. It is also proposed to amend article 19(2) by adding a further restriction on disclosure of information received in
confidence except if required in public interest." [17]
© Geeta Narula. All rights reserved with the author.
* Advocate, Delhi High Court
Contact at:
advocategeeta@yahoo.com/ advocategeeta@rediffmail.com [1] Narula, Geeta; Role of Media in shaping public opinion : An Empirical study; ,
available at
http://www.india.indymedia.org/en/2005/03/210234.shtml [2] Dr.Ambedkar's speech in Constituent Assembly Debates, vii-980
[3] Js. Black in New York Times Co. v. United States (The Pentagon Papers Case),
403 U.S. 713 (1971)
[4] AIR 1950 SC 124
[5] AIR 1950 SC 129
[6] AIR 1962 SC 305
[7] AIR 1971 SC 481
[8] This view was re-iterated in Life Insurance Corporation of India v. Manu Bhai D. Shah,
(1992) 3 SCC 637
[9] Bennett Coleman and Co v Union of India ; AIR 1973 SC 106
[10] Indian Express Newspapers v Union of India; (1985) 1 SCC 641
[11] R.Rajagopal v State of T.N;(1994) 6 SCC 632
[12] Supra note 6
[13] 1995 2 SCC 161
[14] Singh, Swati; Freedom Of Information Imperative For Freedom Of Press; available at
h
http://www.thehoot.org/story.asp?storyid=nitinhootK067021&pn=1 [15] 417, U.S. 843 (1974)
[16] Supra note 1
[17] available at
http://www.lawmin.nic.in/ncrwcfinalreport/volume1.html 
Email::