Sei sulla pagina 1di 20







(Faculty of Press and media law)

Submitted By: Rohit kr. Gaurav

Roll No: 787

5th Year,

9th Semester


The present project on the article 19(1)a and freedom of press has been able to get its
final shape with the support and help of people from various quarters. My sincere
thanks go to all the members without whom the study could not have come to its present
state. I am proud to acknowledge gratitude to the individuals during my study and
without whom the study may not be completed. I have taken this opportunity to thank
those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to MR. KUMAR

GAURAV, Faculty for press and media law, Chanakya National Law University for
helping me in my project. I am also thankful to the whole Chanakya National Law
University family that provided me all the material I required for the project. Not to
forget thanking to my parents without the co-operation of which completion of this
project would not had been possible.

I have made every effort to acknowledge credits, but I apologize in advance for any
omission that may have inadvertently taken place.

Last but not least I would like to thank Almighty whose blessing helped me to complete
the project.

Method of Research:

The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the library at the Chanakya National Law University and also the internet

Aims and Objectives:

The aim of the project is to present a detailed study on article 19(1)a and freedom of press

Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of
certain restrictions and limitations I was not able to deal with the topic in great detail.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Cases

2. Books

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation:

The researcher has followed a uniform mode of citation throughout the course of this research


1. Introduction

2. Meaning and scope of Article 19(1)a

3. Reasonable restrictions

4. Present position of Article 19(1)a

5. New dimensions to Article 19(1)a

6. Freedom of the Press

7. Media and Law
(i) Trial by the Media

"I disapprove of what you say, but I will defend to the death your right to say it" - Voltaire.

This one line sums up for me, the whole essence of democratic behaviour. Speech is God's
gift to mankind. Through speech a human being conveys his thoughts, sentiments and
feelings to others. Freedom of speech and expression is thus a natural right, which a human
being acquires on birth. It is, therefore, a basic right. "Everyone has the right to freedom of
opinion and expression; the right includes freedom to hold opinions without interference and
to seek and receive and impart information and ideas through any media and regardless of
frontiers" proclaims the Universal Declaration of Human Rights (1948). The people of India
declared in the Preamble of the Constitution, which they gave unto themselves their resolve
to secure to all the citizens liberty of thought and expression. This resolve is reflected in
Article 19(1)(a) which is one of the Articles found in Part III of the Constitution, which
enumerates the Fundamental Rights. Similar laws exist in other democracies.

Man as rational being desires to do many things, but in a civil society his desires have to be
controlled, regulated and reconciled with the exercise of similar desires by other individuals.
The guarantee of each of the above right is, therefore, restricted by the Constitution in the
larger interest of the community. The right to freedom of speech and expression is therefore
subject to limitations imposed under Article 19(2) by the First Amendment to the Constitution
in 1951 which attempted to strengthen state regulation over the freedom of speech and
expression by expanding the scope of Article 19(2).

The text of Article 19(1)a and Article 19(2)

Article 19(1)a and 19(2) read as follows:

19. Protection of certain rights regarding freedom of speech, etc:-

(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...

[(2) 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 rights conferred by the said sub clause in the interests of [the
sovereignty and integrity of 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.]

Meaning and Scope

Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of
speech and expression. Freedom of Speech and expression means the right to express one's
own convictions and opinions freely by words of mouth, writing, printing, pictures or any
other mode. It thus includes the expression of one's idea through any communicable medium
or visible representation, such as gesture, signs, and the like. This expression connotes also
publication and thus the freedom of press is included in this category. Free propagation of
ideas is the necessary objective and this may be done on the platform or through the press.
This propagation of ideas is secured by freedom of circulation. Liberty of circulation is
essential to that freedom as the liberty of publication. Indeed, without circulation the
publication would be of little value. The freedom of speech and expression includes liberty to
propagate not one's views only. It also includes the right to propagate or publish the views of
other people; otherwise this freedom would not include the freedom of press.

Freedom of expression has four broad special purposes to serve:

1) It helps an individual to attain self-fulfilment.
2) It assists in the discovery of truth.
3) It strengthens the capacity of an individual in participating in decision-making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change.
5) All members of society would be able to form their own beliefs and communicate them
freely to others.

In sum, the fundamental principle involved here is the people's right to know. Freedom of
speech and expression should, therefore, receive generous support from all those who believe
in the participation of people in the administration. It is on account of this special interest
which society has in the freedom of speech and expression that the approach of the
Government should be more cautious while levying taxes on matters of concerning
newspaper industry than while levying taxes on other matters.

Explaining the scope of freedom of speech and expression Supreme Court has said that the
words "freedom of speech and expression" must be broadly constructed to include the
freedom to circulate one's views by words of mouth or in writing or through audiovisual
instrumentalities. It therefore includes the right to propagate one's views through the print
media or through any other communication channel e.g. the radio and the television. Every
citizen of this country therefore has the right to air his or their views through the printing and
or the electronic media subject of course to permissible restrictions imposed under Article
19(2) of the Constitution.

Freedom to air one's view is the lifeline of any democratic institution and any attempt to
stifle, suffocate or gag this right would sound a death knell to democracy and would help
usher in autocracy or dictatorship. The modern communication mediums advance public

interest by informing the public of the events and development that have taken place and
thereby educating the voters, a role considered significant for the vibrant functioning of a
democracy. Therefore, in any setup more so in a democratic setup like ours, dissemination of
news and views for popular consumption is a must and any attempt to deny the same must be
frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.

The various communication channels are great purveyors of news and views and make
considerable impact on the minds of readers and viewers and our known to mould public
opinion on vitals issues of national importance. The freedom of speech and expression
includes freedom of circulation and propagation of ideas and therefore the right extends to the
citizen to use the media to answer the criticism levelled against the views propagated by him.
Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must,
however, be exercised with circumspection and care must be taken not to trench on the rights
of other citizens or to jeopardise public interest

Reasonable Restrictions under Article 19(2)

The freedom of speech and expression does not confer an absolute right to speak and publish,
without responsibility, whatever one may choose or an unrestricted or unbridled licence that
gives immunity for every possible use of language and does not prevent punishments for
those who abuse this freedom.1 Clause (2) of Article 19 specifies the grounds on which the
freedom of speech and expression may be restricted. It enables the legislature to impose
reasonable restrictions on the right to free speech in the interests of or in relation to the

1) Sovereignty and integrity of India.

2) Security of the state.
3) Friendly relations with foreign states.
4) Public Order.
5) Decency and Morality.
6) Contempt of court.
7) Defamation.
8) Incitement to an offence.

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not
by an executive action.2 Now we shall consider these heads separately in the above given

1 Romesh Thappar v. State of Madras, AIR 1950 SC 124

2 Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133; Bijoe Emmanuel v. State of
Kerela, (1986)3 SCC 615

1. Sovereignty and Integrity of India This ground has been by the Constitution
(Sixteenth Amendment) Act, 1963. The present amendment is made to guard against
the freedom of speech and expression being used to assail the territorial integrity and
sovereignty of the Union. Thus, it will be legitimate for the Parliament under this
clause to restrict the right of free speech if it preaches secession of any part of the
territory of India from the Union. However, what has to be kept in mind is that teh
restriction is with respect to the territorial integrity of the Union of India and not with
respect to the territorial integrity of the constituent states.3

2. Security of the state The security of the state may well be endangered by the
crimes of violence intended to overthrow the government, waging of war and
rebellion against the government, external aggression or war, etc. Serious or
aggravated forms of public disorder are within the expression security of state.
Every public disorder cannot be regarded as threatening the security of the state. In
Romesh Thapar case4 the Supreme Court pointed out that the expression does not
refer to ordinary breaches of public order which do not involve any danger to the state
Incitement to commit violent crimes like murder would endanger the security of the
state. Thus, in State of Bihar v. Shailabala Devi5, the law which made the signs, words
or visual representations which caused the incitement of violence fall squarely within
Article 19(2). After the amendment of the Constitution in 1951 public order was
added as a ground for restrictive laws.

3. Friendly relations with foreign states This ground was added by the Constitution
(First Amendment) Act of 1951. The State can impose reasonable restrictions on the
freedom of speech in the interest of friendly relations with foreign states. The
justification is obvious: unrestrained malicious propaganda against a friendly foreign
state may jeopardise the maintenance of good relations between India and that state.

4. Public Order The preservation of public order is one of the grounds for imposing
restrictions on the freedom of speech and expression. This ground did not occur in the
Constitution as framed in 1950 but was added later by the First (Amendment) Act,
1951. The expression public order is synonymous with public peace, safety and
3 Article 3 of the Constitution : Formation of new states and alteration of areas, boundaries or
names of existing states Parliament may by law Form a new state by separation of territory from
any state or by uniting two or more states or parts of states or by uniting any territory to any part of any
(b) Increase the area of any state;
(c) Diminish the area of any state;
(d) Alter the boundaries of any state;
(e) Alter the name of any state.

4 Romesh Thappar v. State of Madras, AIR 1950 SC 124.

5 AIR 1952 SC 329.

tranquillity.6 It signifies the absence of disorder involving breaches of local
significance in contradistinction to national upheavals such as revolution, civil strife
or war, affecting the security of the state.

It may be noticed that clause (2) uses the words in the interests of public order and
not for the maintenance of public order. A law may not be designed to directly
maintain law and order yet it may be enacted in the interests of public order. Also,
not only such utterances as are directly intended to incite disorder, but also those that
have the tendency to lead to disorder fall within the expression. 7 Thus, a law
punishing utterances made with deliberate intention to hurt the religious feelings of
any class is valid, because it imposes a restriction on the right to free speech in the
interest of public order, since such speech or writing has the tendency to create public
disorder even if in some cases such activities may not lead to the breach of peace. 8 In
the case of Virendra v. State of Punjab9 certain safeguards which compelled the court
to hold restrictions as substantively and procedurally reasonable were:

a) The positive requirement of the existence of satisfaction of the authority as to the

necessity for the making of the order for specific purposes mentioned in the Act.
b) The discretion was given in the first instance to the State Government to
determine the necessity of passing the order.
c) The order could remain in force only for two months from its making thereof.
d) The aggrieved party was given the right to make representation to the State
government which could on consideration thereof rescind, modify or confirm the
5. Decency and morality Decency and morality is another ground on which freedom
of speech and expression may be reasonably restricted. Decency is same as lack of
obscenity. Obscenity becomes a subject of constitutional interest since it illustrates
well the clash between the right of individuals to freely express their opinion and the
duty of the state to safeguard their morals. It is obvious that the right to freedom of
speech and expression cannot be used to deprave and corrupt the community.
In Ranjit Udeshi v. State of Maharashtra 10the Supreme Court for the first time was
called upon to lay down the test to determine obscenity. The facts were that the
appellants, a Bombay bookseller, was prosecuted under Section 292of the Indian
Penal Code for selling and for keeping for sale the well known book, Lady Chatterlys

6 Supdt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.

7 Ramji Lal Modi v. State of U.P., AIR 1957 SC 620; Virendra v. State of Punjab, AIR 1957 SC 896.

8 Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.

9 AIR 1957 SC 896.

10 AIR 1976 SC 881.

Lover written by D.H. Lawrence. The Magistrate held that the book was obscene and
sentenced the appellant. The court held that it had the right to restrict the freedom on
the grounds of decency and morality.

6. Contempt of Court The constitutional right to freedom of speech does not prevent
the courts from punishing for their contempt spoken or printed words or any other
expression calculated to have that effect.11 The expression contempt of court is now
defined in Section 2 of the Contempt of Courts Act, 1971 as under:
a) contempt of court means civil contempt or criminal contempt;
b) civil contempt means wilful disobedience to any judgement, decree, direction,
order, writ or any other process of a court or wilful breach of an undertaking given
to a court;
c) criminal contempt means the publication (whether by words spoken or written,
or by signs, or by visible representations, or otherwise) of any matter or the doing
of any other act whatsoever which
i) Scandalizes or tends to scandalize or lowers or tends to lower the authority
of any court
ii) Prejudices, or interferes or tends to interfere with the due course of any
judicial proceedings
iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

7. Defamation: Defamatory matter exposes a person to hatred, ridicule or contempt.

The law of defamation is divided into libel and slander. Defamatory matter, if in
matter, if in writing, printing or some other permanent medium, is a libel; if in spoken
words or gestures, a slander. Right to free speech does not entitle us to violate the
rights of others.

8. Incitement to an offence This is also a ground added in 1951. The freedom of

speech and expression cannot be used as a licence to incite people to commit an
offence. During the debate in the parliament for the inclusion of this clause it was
argued that the phrase incitement to violence should be used instead as the word
offence has a very wide meaning and can include any act which is punishable
under the Indian Penal Code or any other law. However, this suggestion was rejected.
In State of Bihar v. Shailabala Devi12 the supreme court held that incitement to murder
or any other violent crime would generally endanger the security of the state; hence a
restriction against such incitement would be valid law under Article 19(2).

Sedition: Sedition embraces all those practices that, whether by word, deed or action
are calculated to disturb the peace and tranquillity of the State and lead innocent

11 L.R. Frey v. R. Prasad, AIR 1958 Punj 377.

12 AIR 1952 SC 329

people to subvert the government13. Incitement to violence and public disorder is the
gist of the offence. However, criticism of the existing government or system and
expression of a desire for a different system altogether is not prohibited.14

The Present Position of Article 19(1)a

The present position as to the applications of article 19 of the Constitution to various
categories of persons may be stated in the form of propositions, as under :-

(1) Article 19 of the Constitution being confined to citizens, foreigners cannot claim any
right thereunder15.
(2) A corporation cannot claim citizenship16, and cannot therefore claim any right 17 under
article 19, as it stands at present
(3) This is so even though the corporation is a company whose shareholders are citizens
of India.18
(4) But the shareholders of a company can challenge the constitutional validity of the law
on the ground of infringement of Article 19, if their own rights are infringed 19, and in
such a proceeding the company may be joined as a party20.

Chronologically, the first important case to be noticed on the point at issue is of 1957. The
Supreme Court had, in that case21, hinted at the difficulty that may arise out of the fact that a

13 R. v. Sullivan, (1968) 11 Cox Cases 55.

14 Nihrendu v. Emperor, AIR 1942 FC 22, 26

15 Anwar v. State of J. & K. AIR 1971 SC 337, 338.

16 Barium Chemicals v. Company Law Board, AIR 1967 SC 295; Tata Engineering Co. v. State of
Bihar, AIR 1965 SC 40; S.T.C. v. C.T.O.AIR 1963 SC 1811.

17 Amritsar Municipality v. State of Punjab, AIR 1965 SC 110.

18 Barium Chemicals v. Company Law Board, AIR 1967 SC 295; Tata Engineering Co. v. State of
Bihar, AIR 1965 SC 40

19 Bennett Coleman v. Union of India, AIR 1973 SC 106.

20R.M.D. Chamarbaugwala v. UOI, (1957) SCR 930.

21 M.S.M. Sharma v. Shri Krishna Sinha, (1959) Suppl. I.S.C.R. 806.

non citizen running a newspaper is not entitled to the fundamental right of freedom of speech
and expression and therefore cannot claim the benefit of liberty of the press22.

Thereafter, there are two decisions of the Supreme Court reported in 1964, relevant to the
subject. The first was a ruling of a bench of nine judges which by majority held that the
provisions of the Citizenship Act were conclusive on the question that a corporation or a
company could not be a citizen of India 23. In the second case of 1964, it was unanimously
decided by a bench of five judges of the Supreme Court that Article 19 guaranteed the rights
in question only to citizens as such, and that an association such as a company could not
claim these rights on the basis that they were an aggregation of citizens.

In 1970, the Supreme Court24 held that the jurisdiction of the court to grant relief cannot be
denied when the rights of the individual shareholder are impaired by State action, if the state
action impairs the rights of a company as well. The test for determining whether the
shareholders rights are impaired is not formal; it is essentially qualitative; if the State action
impairs the rights of the shareholders as well of the company, the court will not,
concentrating merely on the technical operation of the action deny itself jurisdiction to grant

However, it should be pointed that Shah, J. in the above decision 25, definitely said that the
Supreme Court rulings of 1964 had no relevance to the question at issue. The petitioner had
sought to challenge an infringement of his own rights and not an infringement of rights of the

In 1973, the majority of the Supreme Court 26 held that although a company is not a citizen,
the citizen shareholders can enforce their rights of free speech as the company is only a
medium of for expression of their views.

New Dimensions Of Freedom Of Speech And


22 S.T. C. v. Commercial Tax Officer, (1964) 4 SCR 90.

23 Tata Engineering and Locomotive v .State of Bihar ,AIR 1965 SC 40

24 R.C. Cooper v. UOI, (1970) 3 SCR 530.

25 Para 2-3, supra.

26 Bennett Coleman v. UOI, AIR 1973 SC 106.

Government has no monopoly on electronic media: The Supreme Court widened
the scope and extent of the right to freedom of speech and expression and held that the
government has no monopoly on electronic media and a citizen has under Art. 19(1)(a) a right
to telecast and broadcast to the viewers/listeners through electronic media television and
radio any important event. The government can impose restrictions on such a right only on
grounds specified in clause (2) of Art. 19 and not on any other ground. A citizen has
fundamental right to use the best means of imparting and receiving communication and as
such have an access to telecasting for the purpose.

Commercial Advertisements: The court held that commercial speech (advertisement)

is a part of the freedom of speech and expression. The court however made it clear that the
government could regulate the commercial advertisements, which are deceptive, unfair,
misleading and untruthful. Examined from another angle the Court said that the public at
large has a right to receive the "Commercial Speech". Art. 19(1)(a) of the constitution not
only guaranteed freedom of speech and expression, it also protects the right of an individual
to listen, read, and receive the said speech.

Telephone Tapping: Invasion on right to privacy : Telephone tapping violates Art.

19(1)(a) unless it comes within grounds of restriction under Art. 19(2). Under the guidelines
laid down by the Court, the Home Secretary of the center and state governments can only
issue an order for telephone tapping. The order is subject to review by a higher power review
committee and the period for telephone tapping cannot exceed two months unless approved
by the review authority.

Freedom of Press
The constitution of India does not specifically mention the freedom of press. Freedom of
press is implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the
restrictions that are provided under the Article 19(2) of the Constitution. Before
Independence, there was no constitutional or statutory provision to protect the freedom of
press. As observed by the Privy Council in Channing Arnold v. King Emperor27: The
freedom of the journalist is an ordinary part of the freedom of the subject and to whatever
length, the subject in general may go, so also may the journalist, but apart from statute law
his privilege is no other and no higher. The range of his assertions, his criticisms or his
comments is as wide as, and no wider than that of any other subject. The Preamble of the
Indian Constitution ensures to all its citizens the liberty of expression. Freedom of the press
has been included as part of freedom of speech and expression under the Article 19 of the
UDHR. The heart of the Article 19 says: Everyone has the right to freedom of opinion and
expression, this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers.

27 (1914) 16 BOMLR 544.

In Romesh Thapar v. State of Madras 28, Patanjali Shastri, CJ observed: Freedom of speech
and of the press lay at the foundation of all democratic organisations, for without free
political discussion no public education, so essential for the proper functioning of the process
of popular government, is possible.

The Supreme Court observed in Union of India v. Assn. for Democratic Reforms 29: One
sided information, disinformation, misinformation and non information, all equally create an
uninformed citizenry which makes democracy a farce. Freedom of speech and expression
includes right to impart and receive information which includes freedom to hold opinions.

In Indian Express v. Union of India 30, it has been held that the press plays a very significant
role in the democratic machinery. The courts have duty to uphold the freedom of press and
invalidate all laws and administrative actions that abridge that freedom. Freedom of press has
three essential elements. They are:

1. freedom of access to all sources of information,

2. freedom of publication, and

3. freedom of circulation.

In India, the press has not been able to exercise its freedom to express the popular views.
In Sakal Papers Ltd. v. Union of India 31, the Daily Newspapers (Price and Page) Order,
1960, which fixed the number of pages and size which a newspaper could publish at a
price was held to be violative of freedom of press and not a reasonable restriction under
the Article 19(2). Similarly, in Bennett Coleman and Co. v. Union of India32, the validity
of the Newsprint Control Order, which fixed the maximum number of pages, was struck
down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be
reasonable restriction under Article 19(2). The Court struck down the plea of the
Government that it would help small newspapers to grow.

In Romesh Thapar v. State of Madras 33, entry and circulation of the English journal
Cross Road, printed and published in Bombay, was banned by the Government of
28 AIR 1950 SC 124.

29 2002(005) SCC 0361SC.

30 AIR 1995 SC 965.

31 1962 SCR (3) 842.

32 AIR 1973 SC 106.

Madras. The same was held to be violative of the freedom of
speech and expression, as without liberty of circulation, publication would be of little
value. In Prabha Dutt v. Union of India34, the Supreme Court directed the Superintendent
of Tihar Jail to allow representatives of a few newspapers to interview Ranga and Billa,
the death sentence convicts, as they wanted to be interviewed.

There are instances when the freedom of press has been suppressed by the legislature. The
authority of the government, in such circumstances, has been under the scanner of
judiciary. In the case of Brij Bhushan v. State of Delhi 35, the validity of censorship
previous to the publication of an English Weekly of Delhi, the Organiser was questioned.
The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed
the editor and publisher of a newspaper to submit for scrutiny, in duplicate, before the
publication, till the further orders, all communal matters all the matters and news and
views about Pakistan, including photographs, and cartoons, on the ground that it was a
restriction on the liberty of the press. Similarly, prohibiting newspaper from publishing its
own views or views of correspondents about a topic has been held to be a serious
encroachment on the freedom of speech and expression

Media and the Law: Freedom of Speech or

Unbridled Freedom?
What is construed as the media commonly today is not the entire media but only a part of it.
The media includes both the traditional means of mass communication, such as books and
pamphlets; nautankies, puppet shows, street plays, ballads, kirtans, pulpit and platform and
the modern stage; small and big screen motion pictures; radio, print and the electronic media;
SMS; Internet etc.

There is a whole range of general laws from the Constitution of Indiathe Press laws, the
Cinematograph Act, the Indian Penal Code, the Criminal Procedure Code etc. which govern
various forms of the media. In addition to these, there are norms of journalistic ethics
prescribed by the Press Council of India, which govern the newspapers; they are not laws,
but professional ethics to be observed by the print media. There are, however, no such
guidelines for the electronic media, since the Press Council has jurisdiction only over the
print media. The electronic media has been consistently resisting prescription of the ethical
code by an independent body like the Press Council. After a great deal of public pressure, it
has now established an internal bodythe News Broadcasting Association (NBA)to
regulate its conduct. Needless to say, the jurisdiction of this body is confined only to those
electronic outfits which submit to its jurisdiction, and the body itself is accountable to those
who accept its jurisdiction and not to the people.

33 AIR 1950 SC 124.

34 AIR 1982 SC 6.

35 AIR 1950 SC 129.

There is no law which can compel a media outlet to give full and fair information or prevent:
suppression, varnishing, garbling and distortion of facts or motivated reportage or mixing
comments with facts. Only journalistic ethics may be invoked against such misconduct. And
the body, if any, entrusted with enforcing the ethics may act against such misdeeds.

Press Council, which is a correcting mechanism and is in existence in many countries, has
been successfully discharging its duties for a long time now and never has one heard of
censorship against it in any country. In many countries, either the same body or separate
bodies act as correcting mechanisms for print and electronic media. Secondly, our Press
Council, which at present has jurisdiction only over the print media, is admittedly an
independent body and entertains complaints of the media even against the government.
Thirdly, most of the Press Councils have a majority of their members representing the media.
Fourthly, the Press Councils entertain complaints against the media for violation of
professional ethics and the law of the land, which are both pre-known. Lastly, the Press
Council Act of India has been enacted to also preserve and protect the independence of press
and journalists. It is for this reason that during the 1975 Emergency the Press Council Act
was suspended by the then government. The present resistance in our country to the so called
external body is from the electronic media. They are raising a bug bear of Democracy in

It is the Supreme Court which freed the airwaves from the monopoly of the government and
made them available to all by its decision in 1993, BCCI v. Union of India. The use of
airwaves is of course subject to constitutional, legal and ethical restrictions.

Trial by Media
The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial
under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has
recommended a law to debar the media from reporting anything prejudicial to the rights of
the accused in criminal cases, from the time of arrest to investigation and trial.

The commission has said, "Today there is feeling that in view of the extensive use of the
television and cable services, the whole pattern of publication of news has changed and
several such publications are likely to have a prejudicial impact on the suspects, accused,
witnesses and even judges and in general on the administration of justice".

This is criminal contempt of court, according to the commission; if the provisions of the Act
impose reasonable restrictions on freedom of speech, such restrictions would be valid.
It has suggested an amendment to Section 3(2) of the Contempt of Courts Act. Under the
present provision such publications would come within the definition of contempt only after
the chargesheet is filed in a criminal case, whereas it should be invoked from the time of


In another controversial recommendation, it has suggested that the high court be empowered
to direct a print or electronic medium to postpone publication or telecast pertaining to a
criminal case. On November 3, 2006, former chief justice of India Y K Sabharwal expressed
concern over the recent trend of the media conducting 'trial' of cases before courts pronounce
judgments, and cautioned: "If this continues, there can't be any conviction. Judges are
confused because the media has already given a verdict". According to law an accused is
presumed to be innocent till proved guilty in a court of law, and is entitled to a fair trial. So,
it is legitimate to demand that nobody can be allowed to prejudge or prejudice one's case?
Why should judges be swayed by public opinion?

In the US, the O J Simpson case attracted a lot of pre-trial publicity. Some persons even
demonstrated in judges' robes outside the court and lampooned Etoo, the trial judge. Yet,
Simpson was acquitted. The judge was not prejudiced by media campaign or public opinion.

The Supreme Court has ruled in many cases that freedom of the press is a fundamental right
covered by the right to freedom of expression under Article 19 of the Constitution.
But the right to fair trial has not explicitly been made a fundamental right. That does not
mean that it is a less important right. More than a legal right, it is basic principle of natural
justice that everyone gets a fair trial and an opportunity to defend one self.

The NHRC, in its special leave petition filed before the Supreme Court against acquittal of
the accused in the Best Bakery case, contended that the concept of a fair trial is a
constitutional imperative recognised in Articles 14, 19, 21, 22 and 39-A as well as by the
CrPC. If there is a clash between the two rights freedom of expression and fair trial
which should prevail? It is true that contempt of court is a ground for restricting the freedom
of speech, but the media has not tried to lower the dignity of the judiciary by exposing
loopholes of the investigation and the prosecution and if judicial decisions also appear to be
arbitrary, they must be subjected to ruthless scrutiny. It will be dangerous to gag the press in
the name of contempt of court. If the appellate court feels that the media publicity affected
fair trial, it can always reverse the decision of the lower court.

The Supreme Court's pronouncement in Rajendra Sail case, though given in context of
criminal contempt, provides the proper guideline: "For rule of law and orderly society, a free
press and independent judiciary are both indispensable".


From the above it can be easily concluded that right to freedom of speech and expression is
one of the most important fundamental rights. It includes circulating one's views by words or
in writing or through audiovisual instrumentalities, through advertisements and through any
other communication channel. It also comprises of right to information, freedom of press etc.
Thus this fundamental right has a vast scope.

From the above case law analysis it is evident that the Court has always placed a broad
interpretation on the value and content of Article 19(1)(a), making it subjective only to the
restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or
suffocate this freedom have always been firmly repelled, more so when public authorities
have betrayed autocratic tendencies.

It can also be comprehended that public order holds a lot of significance as a ground of
restriction on this fundamental right. But there should be reasonable and proper nexus or
relationship between the restriction and achievement of public order. The words 'in the
interest of public order' include not only utterances as are directly intended to lead to disorder
but also those that have the tendency to lead to disorder.


Shorter Constitution of India, 11th edition, D.D.Basu

Constitution of India V.N. Shukla; Revised by Mahendra P. Singh; 10th Edition,

Eastern Book Company

Indian Constitutional Law M. P. Jain; 5th edition(2003); Volume I & II