Freedom of the Press

IN Law and Policy | 17/10/2007

Article 19 1’ A, Bare act

     http://www.constitution.org/cons/india/p03019.html

Notes-

1.        The freedom of expression is part of the fundamental rights guaranteed to a citizen of India, under part –III of the constitution.

2.        The Indian Constitution, while not mentioning the word "press", provides for "the      right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court.

 The Press in India has a dual nature. It is an extension of the individual’s right to expression of thoughts. It is also seen as a businesses enterprise and is therefore regulated by laws of commerce, taxation, employment etc

Readings on Article 19(1) -  Alok Thakore

 This bibliographic essay surveys secondary literature on the freedom of speech clause in the Indian Constitution.  While almost all the sources directly speak to or about Article 19 (1), there are some pieces that are more general, and hence after their own fashion more revealing.  The essay has a chronological rather than a topical organization because it attempts to survey literature that discusses not any one aspect of the Article, but the origin, problems, cases, or, to wit, free speech in the Indian Constitution.  Chronology helps to place some of the debates and concerns as they have arisen over the last fifty-five years since the Constitution was adopted in 1950.

Among the earliest responses to the idea of free speech in post-Independence India is an article that appeared in the Modern Review, an intellectual journal published from Calcutta, whose pages had seen numerous debates among Indian politicians.  The article[i][i] is an interesting polemic by an author who begins with a claim about his politics.  It is "as a confirmed Liberal" that C.L.R. Shastri begins his complaints against what he sees is the replacement of the "King Stork for King Log." The tone of a political Jeremiah is unmistakable; the author admits as much.  But the value of this piece lies in some contemporaneous events that the journalist-author, an occupational revelation that he allows the reader, narrates.  A couple will suffice here.  Shastri quotes the then president of the Congress Party saying, "Democracy is only the autocracy of the chosen people," when replying to the concern of increased press control since the transfer of power.  The answer is important because this same person was one of the members of the Constituent Assembly; an assembly that is regarded to have consisted of liberal and progressive men and women.  Yet another remark by another leading member of the Congress Party is even more revealing.  "It is better to do a little harm now in order to save the people from much greater harm later," remarked the Chief Minister of Bombay introducing a bill.  Shastri¿s indictment is severe.  He sees even the Draft Constitution striking "at the very root of received notions of democracy" and blames the Congress Party (synonymous with the Constituent Assembly) of displaying ingratitude by not only permitting "old fetters on our Press to remain" but of forging "fresh ones at their sweet will and pleasure."

This piece is important because in this survey it stands as a professional challenge to the framing of the Press Clause, and of providing an example of what may be an important but little reported segment of the then current political opinion in the country.  The usual wisdom of the framers is here challenged by a contemporary who provides an example of a marginalized voice, which will scarcely find mention in succeeding discussions on freedom of speech and expression.[ii][ii]

Moving from Shastri to C. J. S. Bindra is a move from the chambers of public opinion to that of law.  Bindra is responding in this All India Reporter article[iii][iii] to the First Amendment to the Indian Constitution, which seems to have brought all of Shastri¿s fears true.  After three court cases were declared ultra vires by the Supreme Court for not coming within the ambit of the allowed exceptions to free speech, the Indian Parliament amended Article 19(2) to allow for "reasonable restriction" on "public order," "incitenient to offence" and "friendly relations with foreign states." Bindra¿s concerns are best summarized in his own words, "Indeed, the amended Article 19 (2) opens the door for rather deep cuts on the freedom of speech and expression, which may not have been under contemplation at all." But there is no mention as to the people or the agencies that may not have contemplated such cuts.  If the reference is to the legislators, there is little that the author offers.

In contrast, P.K. Tripathi’s[iv][iv] piece is a detailed and cogently argued response to the amendment rather than one that merely discusses its implications.  Tripathi, then a law professor at the University of Delhi, laments the haste of the Parliament in pushing the amendment without either bringing older statutes in line with the Constitution or waiting for the Supreme Court to evolve a test for the limits of freedom of speech, as had been done in the case of the United States of America.  The article is important both for the legal differences it posits between the Indian and the American Constitution, and the exhortation it makes to change pre-Independence statutes, which in fact never happened and still stand on the books. The difference between the two Constitutions is made out not on the substance of the freedom of speech, but on the form and technique whereby these issues can come before the court.  Such a comparison is important because in many articles this [1][1]similarity will be emphasized, and the limits will be discussed as being merely the insertion into Indian constitutional law what case laws in the United States are.  The other interesting interpretation made by the author is to seek a restricted interpretation to speech and expression as implying only political speech because such an interpretation is "supported by reason as well as the history of the doctrine of freedom of speech." Such an interpretation is espoused to steer clear of the possible havoc that may be wrought by laws that may be passed to curb speech based on "public order" or "incitement to offence" exceptions.

Tripathi wrote yet another piece that will be discussed later.  It was written for a different audience and the place of publication provides a different context and hence, a different substance to the paper.  In fact, in some ways it may be read as a response to a UCLA Law Review article[v][v] by Harvey M. Grossman.  Grossman examines the extent to which the Supreme Court has provided content to the concept of freedom of expression in India.  It is a methodical survey of the various cases brought before the Supreme Court since 1950, and the manner in which the court has opined.  It also discusses the legislative response of the Parliament by way of constitutional amendment to some of the earliest decisions of the Supreme Court.  However, it is the last line of the article that should detain us: "So long as the Court continues to maintain such an attitude, Article 19(l)(a) will play a vital role in shaping an India worthy of the democratic tradition." The unmentioned presumption of the article rises to the surface.  In a long line of scholars for whom ‘the Orient’[vi][vi] was not thought ready for democracy, Grossman adds his own voice.

Tripathi, whose work has been encountered earlier, now writing for the Yale Law Journal places his piece as an attempt to show that at least in India "the soil has been well prepared to nourish the basic freedom, the freedom to express differences of opinion."[vii][vii] Addressing what is primarily an American audience, Tripathi tries to refute the charges that India is not ready for a democratic tradition.  The four charges of Hinduism, illiteracy, poverty and lack of democratic tradition are addressed in turn, and the influence of Gandhi is offered as an additional proof that democracy, with its concomitant free speech, has an equally healthy prospect in India as in any other country of the world. What is to be noted here is that for the only time one finds the actual life and work of a freedom fighter informing the discussion on free speech.  Tripathi quotes Gandhi’s writing in Young India to point out that for Gandhi at that point free speech meant independence.[viii][viii] So it is only in the carving out of an Indian tradition of free speech that the importance of free speech for Indian leaders is mentioned.  It scarcely finds a place when either discussing reasonable restrictions or the lack of any need for a public order exception.

The next seven years are fairly remarkable for a lack of many articles on the freedom of speech.  But one piece from 1965 is noteworthy.  K. M. Munshi¿s two-page submission[ix][ix] to the Swarajya Annual Number is a right-liberal protest against the attempts of the Indian government to regulate the press under the pretext of preventing monopolies.  Munshi was among the five most important members of the Drafting Committee of the Constituent Assembly. The free speech clause that was finally adopted owed itself to Munshi.  However, he had moved away from the Congress Party to align himself with the socially liberal but economically conservative Swarajya Party. The magazine where Munshi¿s note on the freedom of press appeared was a party magazine. Munshi argued that the proposed Press Council was designed to smother the press and the measure was a way of controlling the press that had no adequate sanction under Article 1 (2).[x][x]  As a liberal he was alarmed that the government was taking a leaf out of the books of those countries where the Press is controlled by the government.  He labeled this move as an amendment to the constitution without going through the necessary formalities.

Once again it is the Swarajya Annual Number of 1972 that takes up the cause of the freedom of the press.  This time the immediate provocation is an amendment to the constitution that allows for the acquisition of private property for a public purpose without any reference and over-rides the fundamental rights enshrined under Article 19. The author[xi][xi] found this measure to be a sure method of destroying the press and making fundamental rights unenforceable.  It should be remembered that this magazine often represented business interests, and was against the socialist policies then being followed by the Indira Gandhi government.  The article argued against a proposed Press Bill that would have imposed restrictions on circulation and ownership patterns.

In the 1970s the most important issue to emerge and challenge the people of the country was the imposition of the Emergency,[xii][xii] which led to countrywide censorship of the media.  Often described as the dark days of the Indian press, the Emergency is an epoch marking moment in Indian history that led to a lot of works on the freedom of the press in India.  Soli Sorabjee’s Law of press censorship in India[xiii][xiii] is among the most important.  He examines the emergency powers of the constitution and offers examples of the cases that he fought before the different high courts and the Supreme Court against Press Censorship.  Sorabjee, who later held the office of the Solicitor-General to the Government of India, in his introduction mentions that the framers attached great importance to freedom of speech.  But he offers no evidence for the same.  It is a given for him.[xiv][xiv]

The article by Rajeev Dhavan[xv][xv] is a complete survey of the salient issues relating to the press laws in India, which does include the constitutional issues dealing with the freedom of speech and the press.  As a survey of the press laws, Dhavan discusses the earliest controls of the press as laws that were based on a lack of trust of the people, a colonial legacy.  What he does not mention is the extent to which this legacy instead of being done away with in post-Independence India was retained and even given a boost, as Shastri, the first author discussed in this essay, pointed out.

In fact, Dhavan’s treatment of the origin of Article 19(l) is fairly representative of most articles and books that address the press laws in the country.  Here, like in other articles, the author bases his discussion on the four-volume selection of the documents of the Constituent Assembly by B. Shiva Rao.[xvi][xvi]  Dhavan’s views deserve to be quoted in extenso. He writes, "The makers of the Indian Constitution did not pay much attention to freedom of the press.  The Constitution refers only to freedom of speech and expression.  Living in the shadow of tremendous political upheaval, the framers sought to introduce the apparatus of controls wielded by the British into the new constitutional structure." At this point he quotes from Shiva Rao.

It is important to break the chronology that has been followed and refer to some of the books that deal with how the framers approached freedom of speech.  In an analysis of the Indian Constitution, K. P. Chakravarti writes that the framers took the idea of freedom of speech from the U.S. Constitution[xvii][xvii] and goes on to quote James Madison.  Justice P.B.Mukherjee[xviii][xviii] uses the proceedings of the Constituent Assembly sub-committee of fundamental rights and the views of a member of the assembly.  Ram Gopal[xix][xix] in his analysis of the undemocratic elements of the Indian Constitution quotes from B. N. Rau¿s Indian Constitution in the Making,[xx][xx] to prove his point that the framers did not adequately understand the U.S. Supreme Court verdicts.  Shibanikinkar Chaube[xxi][xxi] in his book devotes an entire chapter to the framing of the Article 19(l).  But he relies like the others on Shiva Rao¿s four volume proceedings of the assembly.  Even in his discussion of what reasonable restrictions could imply, Chaube does not look at any other sources or to the writings of the framers themselves to come to a better understanding of what reasonable restrictions could be. Vinod Sethi¿s[xxii][xxii] article on the freedom of the press is similar.  Any references to the framers and their experiences are scanty, two to be precise, while there are copious references to U.S. Supreme Court decisions.  Sethi also relies on Shiva Rao¿s selections of the Constituent Assembly documents.  A similar account is found in Sita Bhatia¿s Freedom of press.[xxiii][xxiii]  In a section devoted to the "Press and the Constituent Assembly," Bhatia relies on these debates, much like the other authors.

There is another interesting book that deserves mention.  Authored by activist lawyers Colin Gonsalves and Shobha Desai, Freedom of Press[xxiv][xxiv] is a survey of various laws under which the press may be muzzled.  They decry such laws, which among others include laws of defamation, contempt of court and disclosure of sources.  Nowhere, not even in the introduction, is there any mention of the framers even as the Constitution is faulted for providing minimal protection to the press.  The references are to the United States Supreme Court decisions like Pentagon Papers and New York Times v. Sullivan.  All these illustrations give a flavor of how most of the texts on Article 19(l) treat the origins of the press clause and freedom of speech in the Indian Constitution.

One should return to Dhavan whose treatment of freedom of speech, albeit problematic, is exhaustive.  He divides the paper into the different areas where the freedom of the press collides with the privileges of certain institutions like the judiciary and the legislatures, and discusses the various exceptions to free speech.  It is to Dhavan’s credit that he describes in detail the development of the various laws either through legislative initiatives or through case laws.  But his discussion of the background to free speech is negligible.

This survey suggests that the usual position for most scholars in discussing Article 19(l) and (2) is to treat its origins as a given.  The presence of the extensive records dealing with the proceedings of the Constituent Assembly suggest that any further inquiry into the making of the Constitution in general and of this clause in particular is not needed.  But a few of the bibliographic sources suggest that a more informed understanding of the position of the framers needs to be achieved, not merely to provide an appropriate legal history but also to clarify legal issues of reasonableness and public order.  Unlike the United States of America where the origin becomes an important concern that has spawned considerable literature, in the Indian context it will necessarily have limited legal use, but that should not deter a proper estimation of the free speech principles of the framers of the Indian Constitution.

Case Law

Sakal Newspapers vs. Union of India, 1961

http://judis.nic.in/supremecourt/qrydisp.aspx?filename=4110

Bennett Coleman & Co.Vs. Union of India, 1972

http://judis.nic.in/supremecourt/qrydisp.aspx?filename=6674