Of Fundamental Rights and Others' Noses
1. Do we have an express fundamental right that guarantees freedom of the press, in India?
Answer: No, there is no explicit fundamental right which guarantees freedom of press in India, however the Indian Supreme Court has through a series of decisions held that the freedom of the press is a part of the fundamental right to freedom of speech and expression contained under Article 19(1)(a) of the Constitution of India. This is a consistent position taken by Courts in India.
Reasoning: Even when the Indian constitution was being drafted the Constituent Assembly deliberated the omission of an express guarantee to the Press. Finally deciding that there was no need to include an express guarantee, Dr. B. R. Ambedkar and Dr. B.N. Rao noted that the freedom of the press would be included within the freedom to speech and expression under Article 19(1)(a). This view was shortly reaffirmed by the Supreme Court in Brij Bhushan v. State of Delhi (AIR 1950 SC 129); Express Newspapers Ltd. v. Union of India (AIR 1958 SC 578).
Effect: The omission of express language in the Indian Constitution guaranteeing the freedom of press does not in any way mean that it is a lesser right than other express fundamental rights or it receives a step motherly treatment in constitutional challenges. It stands on the same footing as other rights which have been held to be part of Article 19(1)(a). In many judgements, Courts acting in their writ jurisdiction have held that it is one of the deeply cherished rights under Article 19(1)(a) which must receive heightened protection.
2. Do we have an absolute right to freedom of speech and expression?
Answer: No, there is no absolute fundamental right to freedom of speech and expression. The right to speech and expression is contained under Article 19(1)(a) of the Constitution of India. This is subject to the limitations which are contained under Article 19(2).
Reasoning: The right to freedom of speech and expression under Article 19(1)(a) is limited by the restrictions contained under Article 19(2). Article 19(2) contains various grounds on which laws can be made which limit the exercise to freedom of speech and expression. These grounds are collectively referred to as reasonable restrictions. In the landmark case of Sakal Papers v. Union of India (AIR 1962 SC 305), the Indian Supreme Court held that the Constitution permits the imposition of reasonable restrictions only within the grounds expressly stated within Article 19(2). The position which has emerged is that the freedom to speech and expression can be curtailed when:
(a) the restriction is through an authority of law to support it. A restriction cannot be based on executive orders which are not empowered by legislation;
(b) this legislation and law which restricts the right to freedom of speech and expression should fall within the reasonable restrictions as enumerated under Article 19(2);
(c) this restriction should be just, fair and reasonable and not be excessive and disproportionate to the object sought to be achieved.
Effect: Since, the right to freedom of speech and expression is not absolute in India and is curtailed by the various reasonable restrictions as enumerated under Article 19(2), there are various laws which restrict speech. These include laws which provide for civil and criminal penalties to defamation to criminal penalties for sedition or promoting enmity between different religious or linguistic communities.
3. What is a reasonable restriction? Is there any standard for a restriction to be ‘reasonable’?
Answer: A reasonable restriction is one which is a legislation made pursuant to the grounds enumerated under Article 19(2). The test of reasonableness, according to the Constitution Bench of the Supreme Court, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.
Reasoning: The reasonable restrictions are grounds which permit limitations to be placed on the exercise of speech and expression and are contained under Article 19(2). These include, a) Security of State; b) Friendly relations with foreign states; c) Public Order; d) Decency or morality; e) Contempt of Court; f) Defamation; g) Incitement to an offence; and h) Sovereignty and integrity of India. If a law does not fall within these grounds and abridges the right to freedom of speech and expression then it is ultra vires and declared void. For instance, in Bennett Coleman & Co. v Union of India (AIR 1972 SC 106) the Supreme Court again came to the rescue of the press. It held that freedom of press entitles newspapers to achieve any volume of circulation and freedom lies both in its circulation and content.
Effect: Since, the reasonable restrictions which are enumerated under Article 19(2) are broad heads (except defamation and contempt of court), the right to freedom of speech and expression has received variable and subjective protection in judicial pronouncements.
Subscribe To The Newsletter