Role of Press in India's Struggle for Freedom

At the time of the first war of independence, any number of papers were in operation in the country. Many of these like Bangadoot of Ram Mohan Roy, Rastiguftar of Dadabhai Naoroji and Gyaneneshunadvocated social reforms and thus helped arouse national awakening. It was in 1857 itself that Payam-e-Azadi started publication in Hindi and Urdu, calling upon the people to fight against the British. The paper was soon confiscated and anyone found with a copy of the paper was presecuted for sedition. Again, the first hindi daily, Samachar Sudhavarashan, and two newspapers in Urdu and Persian respectively, Doorbeen and Sultan-ul-Akbar, faced trial in 1857 for having published a 'Firman' by Bahadur Shah Zafar, urging the people to drive the British out of India. This was followed by the notroius Gagging Act of Lord Canning, under which restrictions were imposed on the newspapers and periodicals. Notable Role In the struggle against the British, some newspapers played a very notable role. This included theHindi Patriot! Established in 1853, by the author and playwright, Grish Chandra Ghosh, it became popular under the editorship of Harish Chandra Mukherjee. In 1861, the paper published a play, "Neel Darpan" and launched a movement against the British, urging the people to stop cultivating the crop for the white traders. This resulted in the formation of a Neel Commission. Later, the paper was taken over by Ishwar Chandra Vidyasagar. The paper strongly opposed the Government's excesses and demanded that Indians be appointed to top government posts. The Indian Mirror was the other contemporary of this paper which was very popular among the reading public. Yet another weekly, Amrita Bazar Patrika which was being published from Jessore, was critical of the government, with the result that its proprietors faced trial and conviction. In 1871, the Patrika moved to Calcutta and another Act was passed to supress it and other native journals. Marathi Press Mahadev Govind Rande, a leading leader of Maharashtra, used to write in Gyan Prakash as well as inIndu Prakash. Both these journals helped awaken the conscience of the downtrodden masses. Another Marathi weekly, Kesari was started by Tilak from January 1, 1881. He aIongwith Agarkar and Chiplunkar started another weekly journal, Mratha in English. The Editor of the 'Daccan Star' Nam Joshi also joined them and his paper was incorporated with Maratha. Tilak and Agarkar were convicted for writings against the British and the Diwan of Kolhapur. Tilak's Kesari became one of the leading media to propagate the message of freedom movement. It also made the antipartition movement of Bengal a national issue. In 1908, Tilak opposed the Sedition ordinace. He was later exiled from the country for six years. Hindi edition of Kesari was started from Nagpur and Banaras. Press and the First Session of Congress

The Editors commanded a very high reputation at the time of the birth of the Indian National Congress. One could measure the extent of this respect from the fact that those who occupied the frontline seats in the first ever Congress session held in Bombay in December 1885 included some of the editors of Indian newspapers. The firstever resolution at this Session was proposed by the editor of The Hindu, G. Subramanya Iyer. In this resolution, it was demanded that the government should appoint a committee to enquire into the functioning of Indian administration. The second resolution was also moved by a journalist from Poona, Chiplunkar in which the Congress was urged to demand for the abolition of India Council which ruled the country from Britain. The third resolution was supported by Dadabhai Naoroji who was a noted journalist of his time. The fourth resolution was proposed by Dadabhai Naoroji. There were many Congress Presidents who had either been the editors or had started the publication of one or the other newspapers. In this context, particular mention may be made of Ferozeshah Mehta who had started the Bombay Chronide and Pandit Madan Mohan Malaviya who edited daily, Hindustan. He also helped the publication of Leader from Allahabad. Moti Lal Nehru was the first Chairman of the Board of Directors of the leader. Lala Lajpat Rai inspired the publication of three journals, the Punjabi, Bandematram and the People from Lahore. During his stay in South Africa, Gandhiji had brought out Indian Opinion and after settling in India, he started the publication of Young India; Navjeevan, Harijan, Harijan Sevak and Harijan Bandhu. Subash Chandra Bose and C.R. Das were not journalists but they acquired the papers like Forward and Advance which later attained national status. Jawaharlal Nehru founded the National Herald. Revolutionary Movement and the Press So far as the revolutionary movement is concerned, it did not begin with guns and bombs but it started with the publication of newspapers. The first to be mentioned in this context is Yugantarpublication of which was started by Barindra Kumar Ghosh who edited it also. When the Ghadar party was organised in Amenca, Lala Hardayal started publication of the journal 'Ghadar'. Within one year, millions of copies of this journal were published in Hindi, Urdu, Punjabi, Gujarati, Marathi and English and sent to India and to all parts of the world where Indians were residing. In the beginning the copies of the journal were concealed in parcels of foreign cloth sent to Delhi. It was also planned to smuggle the printing press into India for this purpose. But then the war broke out and it became almost impossible to import printing machinery from abroad. Lala Hardayal was arrested in America and deported to India. One of his followers Pandit Ramchandra started publishing Hindustan Ghadar in English. With the U.S. joining the war, the Ghadar party workers were arrested by the American Government. When the trail was on, one of the rivals of Pandit Ramchandra managed to obtain a gun and shoot him dead in the jail itself. The death of Ram chandra led to the closure of this paper. In 1905 Shyamji Krishna Verma started publication of a journal Indian Sociologist from London. It used to publish reports of political activities taking place at the India House in London. In 1909 two printers of this journal were convicted. Shyamji Krishna Verma left England for Paris from where he started the publication of the journal. Later on, he had to leave for Geneva. He countinued to bring out the journal from there for two or three years more. In Paris, Lala Hardayal, in collaboration with Madam Cama and Sardar Singhraoji Rana brought out Vandematram and Talwar.

After Yugantar, it was Vandematram that played a significant role in the freedom struggle. This journal was established by Subodha Chandra Malik, C.R. Das and Bipin Chandra Pal on August 6, 1906. Its editor, Aurobindo Ghosh, the editor of Sandhya, B. Upadhyay and editor of Yugantar B. N. Dutt had to a face a trial for espousing the cause of freedom. So far as the Hindi papers were concerned, they looked to government for support for some time. Bhartendu Harish Chandra was the first to start a journal Kavi Vachan Sudha in 1868. Its policy was to give vent to the miseries of the people of India. When the Prince of Wales visited India, a poem was published in his honour. The British authorities were given to understand that the poem had two meanings and that one word used in the peom could also mean that the Prince of Wales should get a shoe-beating. The government aid to journals like Kavi Vachan Sudha was stopped for publishing what was objectionable from the government point of view. Bhartendu Harish Chandra resigned from his post of an honorary Magistrate. His two friends, Pratap Narain Mishra and Bal Krishna Bhatt started publication of two important political journals Pradeep from Allahabad, and Brahman from Kanpur. ThePradeep was ordered to be closed down in 1910 for espousing the cause of freedom. The Bharat-Mitra was a famous Hindi journal of Calcutta which started its publication on May 17, 1878 as a fortnighly. It contributed a lot in propagating the cause of freedom movement. The journal exposed the British conspiracy to usurp Kashmir. Several other papers published from Calcutta which played an important role in freedom struggle included Ambika Prasad Vajpayee's Swantrtmtra, Ramanand Chatterjee's Modern Review' in English, Pravasi Patra' in Bengali and Vishal Bharat in Hindi. One of the foremost Hindi journalist who has earned a name for his patriotism was Ganesh Shanker Vidyarthi. In 1913, he brought out weekly Pratap from Kanpur. He made the supreme sacrifice in 1931 in the cause of Hindu-Muslim unity. Krishna Dutt Paliwal brought out Sainik from Agra which became a staunch propagator of nationalism in Western U. P. The noted Congress leader, Swami Shradhanand, started the publication of Hindi journal Vir Arjun' and Urdu journal Tej. After the assassination of Swami Shradhanand, Vidyavachaspathi and Lala Deshbandhu Gupta continued the publication of these journals. They were themselves prominent Congress leaders. In Lahore, Mahashaya Khushal Chand brought out Milap and Mahashaya Krishna started publishing urdu journals which helped a lot in promoting the national cause. In 1881, Sardar Dayal Singh Majitha on the advice of Surendra Nath Bannerjee brought out Tribune under the editorship of Sheetala Kant Chatterjee. Bipin Chandra Pal also edited this paper for sometime. Later in 1917, Kalinath Rai joined the paper as its editor. There is not a single privince in India which did not produce a journal or newspaper to uphold the cause of freedom struggle. A. G. Horniman made the Bombay Chronicle' a powerful instrument to promote militant nationalism. He himself took part in the meetings where Satyagraha used to be planned. He published vivid accounts of Jallianwala Bagh carnage for which one correspondent of his paper, Goverdhan Das, was sentenced to three years' imprisonment by a military court. Horniman too was arrested and deported to London even though he was ill at that time. Amritlal Shet brought

out the Gujarati journal Janmabhumi which was an organ of the people of the princely states of Kathiawad, but it became a mouthpiece of national struggle. Similarly another Gujarati journalSaanjvartman played a prominent role under the editorship of Sanwal Das Gandhi, who played a very significant role in the Quit India Movement in 1942. It was soon after independent formed a parallel Government in Junagarh and forced the Nawab of Junagarh to leave the country. The three editors of the Sindhi journal Hindi Jairam Das Daulatram, Dr. choithram Gidwani and Hiranand karamchand, were arrested, their press closed and the property of the paper confiscated. In Bihar the tradition of national newspapers was carried forward by Sachidanand Sinha, who had started the publication of Searchlight under the editorship of Murtimanohar Sinha. Dev Brat Shastri started publication of 'Nav Shakti and Rashtra Vani'. The weekly yogi and the Hunkar' also contributed very much to the general awakening.

Democracy and Freedom of the Press in India

The recent happenings in Tamil Nadu where six journalists were sentenced to 15 days simple imprisonment for alleged breach of privilege and contempt by the state Legislative Assembly brings back the not so pleasant memories of the Emergency. There is a saying that those who forget history are wont to repeat it. The action is condemnable as the intent of those who passed the judgment is, itself, questionable. The threat to freedom of the press in this country or for that matter in all of Asia hangs like the proverbial sword of Damocles. In India, no political party can boast of respecting the freedom of the press. There have been numerous instances of newspaper offices being vandalised and editors and journalists being roughed up by political flunkeys for publishing articles that were critical of their leaders whose credentials were suspect, to say the least. This sorry state of affairs has increased in recent years. Not long ago, an article published by Alex Perry, a foreign journalist, on Prime Minister Vajpayee's fitness, thereby questioning his ability to lead the nation, considerably angered the ruling party. The press is considered the watchdog of democracy. Sadly, there is scant regard for this truism in a country which is, ironically, the world's largest democracy. Self-discipline, which is so crucial for the survival of any democracy, is fast disappearing from the Indian polity. Tolerance levels are declining and arrogance is all-pervasive. More often than not political power is used to further the cause of the power-hungry rather than to serve the masses. When obedience to the enforceable is itself neglected, obedience to the unenforceable is out of the question. Even after more than five decades of Independence, democracy in India has still not matured and the quality of public life is declining alarmingly. Today, political leaders are voted to power because of their oratory and manipulative skills and not for their wisdom and virtue. We cannot expect better governance if we continue to elect people with criminal track records and malafide intentions. Fortunately, the Indian citizen can depend on a strong judiciary, which has so often come to the rescue. The press, on its part, should bear in mind that freedom of the press does not mean a license to write anything. This freedom is precious and it has to be used judiciously. When this freedom is misused, public respect for this profession will diminish. The press has to guard against this.

Role of the Media in a Democracy

The function of law must be to find out ways and means to restore public debate and free flow of information through the media. This may need restricting of monopoly trends in the media business and relevant laws to protect journalists, writes Dr. S. Sivakumar Introduction The role of the media is vital in generating a democratic culture that extends beyond the political system and becomes engrained in the public consciousness over time. It is through the media that people share their experience, learn and become aware. It is how a constructive political debate about options and policies develops. The media right is exercised in public and therefore has greater effect vis--vis what a person says privately. In order for the media to fulfill this function, it must guarantee its objectivity; the journalist should always be a neutral observer, unengaged with events but faithfully recording them. The following information will outline the key requisites necessary for a robust and balanced media industry and highlight some of the issues that are facing working journalists today. Freedom of Expression Freedom of speech and expression is a natural right. The history of this freedom can probably traced from what John Milton urged, Give me the liberty to know, to utter and argue freely according to conscience above all liberties.1 Since then, the freedom of speech and expression has become a fundamental mantra to realise democratic aspirations. The first amendment in the Constitution of the United States of America was inserted to guarantee this right to its people. Suppression of public opinion during the colonial period influenced the founding fathers of the republic to introduce the Bill of Rights in the form of first fourteen amendments. During 1948, in the background of the Holocaust, the United Nations adopted the Universal Declaration of Human Rights. Article 19 of the Declaration stated as: 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. Almost all constitutions of democratic nations have given the prime place for the right to free speech. About two decades ago, while addressing the Newspaper Society, the doyen of the Indian legal profession Palkhivala observed: Freedom is to the Press what oxygen is to the human being; it is the essential condition of its survival. To talk of a democracy without a free press is a contradiction in terms. A free press is not an optional extra in a democracy. 2 The Indian Scenario During colonial administration in India, dissent was never encouraged. When India attained independence, the framers of the Indian Constitution being aware of the significance of right to free speech, made it a fundamental one. The freedom of speech and expression, which includes freedom of media also, is the soul of democracy. The press per se is not given any special rights. Yet the press being considered the voice of the people enjoys the same rights as individual citizens. Consequently, healthy relationship between the media and the State is the desideratum for protecting human rights. But there is an inherent problem, for ideas, beliefs and opinions when expressed may cause conflicts.3 To resolve such conflicts, the Constitution has provided for certain reasonable restrictions in Article 19(2). 4 Experience of democracies tells us that the freedom of press involves aspects of autonomy and public debate. Some writers stress the former aspect, i.e. freedom of the editor or publisher to publish his views without hindrance. Several others emphasise the latter aspect of public debate. According to these writers, autonomy may be protected only when it enriches public debate; some of them even insist on State interference to protect public debate. Press enables the public to keep a constant vigil over the affairs of the State and ventilate their views for corrective action if anything goes wary. An accountable and transparent Government and well-informed people contribute to a successful democracy. Media has the role of educating people, guarding their freedom and watching over the Government, challenging it and forcing it into the open. Therefore, the media has a duty of more than watching the administration; it has a duty to educate the people. It also enables the citizenry to demand positive action on the part of Government to ameliorate the condition of the society in general and of the weaker section of the society in particular. Judicial Approach to Free Press In many cases, the Indian Supreme Court has reiterated the need to protect the fundamental right of freedom of speech and expression. SinceRomesh Thappar,5 there have been many cases6 involving the right to free speech. In R. Rajagopal Vs. Tamil Nadu,7 Justice Jeevan Reddy reiterated the indispensability of the freedom of press. In his lucid analysis, he points out the jurisprudential desideratum thus: But what is called for today, in the present times, is a proper balancing of the freedom of press and said laws consistent with the democratic way of life ordained by the Constitution. Over the last few decades, press and electronic media have emerged as major factors in our nations life. They are still expanding and in the process becoming more inquisitive. Our

system of government demands as do the systems of government of the United States of America and United Kingdomconstant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good Government.6 With the advent of new technologies, electronic media has become both popular and hyperactive. Cyber world opens up to electronic journals and the digital press has become a popular channel for expression in the electronic age. However, the problem whether they truly represent the sentiments of people or whether they are only mouthpieces of some interest groups, remains tantalising. Sting operations by using electronic bugs while interviewing a person may be good in their attempts to bring out truth, but if the same is used for blackmailing a person, is not only illegal, but also immoral. Democracy may then denigrate into videocracy. But it is heartening to note that there are many websites devoted to bringing to light the incidents of human rights violations. Free Press From the point of view of Constitutional Law, there are three possible constitutional contexts in which a court is called upon to judge whether a particular exercise of freedom of speech is to be judicially protected. They are: 1) Where there is no written constitution, yet a host of statutes delimit the freedom. 2) Where reasonable restrictions are permitted to be imposed by the Constitution itself and the court is called upon to decide whether a particular restriction is reasonable or not. 3) The written Constitution guarantees freedom of expression without any limitation, but the court may impose restrictions. The first context is available in the United Kingdon (UK), where freedom of expression includes both the right to receive and express ideas and information and the secrecy of private communications. 8 Moreover, UK being a signatory of the European Convention on Human Rights (ECHR), its citizens may seek the protection of this freedom by making an appeal to European Court of Human Rights.9 Subsequently, UK brought Human Rights Act 1998 in consonance with ECHR. This has helped the media there to publish material in the face of opposition. The Sunday Times wanted to publish information that originated from a former intelligence officer Richard Tomlinson. The paper argued that the material had been published elsewhere and was therefore not confidential, but the Attorney General insisted they prove that the information was in public domain. The court of appeal agreed with the newspaper, holding that its application was in harmony with Article 10 of the European Convention and section 12 of the Human Rights Act (A-G Vs. Times Newspaper Ltd [2001] EWCA Civ 97, [2001] 1 WLR 885). 10 India is an example of the second situation, where a written Constitution guarantees freedom of speech, but with restrictions. Here also, much depends upon how the judges view the restriction. The third situation is available in the United States of America, where peace and moral standards of the society are the norms usually followed by courts. Obviously, judges have more leeway either in restricting the exercise of freedom or in upholding a moral standard, the limits of which they themselves have to set.11 In the context of judicial techniques in evaluating the restrictions imposed on the exercise of this freedom of speech, one may appreciate the relevant and effective role the judiciary plays in sustaining democracy in India. In such instances, judges may make their own doctrinal prescriptions. The jurisprudential rationale for restricting free speech have been identified and dealt with appropriately, as follows: i) ii) iii) iv) v) Obscenity12 Offending speech13 Hate speech14 Workplace harassment15 National security 16 etc.

Under Article 19(2) of the Constitution, incitement to offence is one of the grounds for legislative interference with the freedom of speech and expression. Expression may incite readers or viewers to illegal action against the target selected by the speaker. In some other context, a particular expression may excite others to break order and cause breach of peace; the speaker may become the target of attack.19 The content of such offending expression may be obscene, hateful, or harassment. Thus, there is a close nexus among the concepts of obscenity, hate speech and harassment. Judiciary has an important role in deciding whether a particular speech is within a protected fundamental right or not, when such a speech is alleged to be violative of the accepted norms. In accepting constitutional provisions and related laws, judiciary comes forward with certain

principles so that it can decide whether a particular speech is violative of any legal code or norms. One such principle is the fighting words doctrine. Fighting words, which may constitutionally be prohibited, are words directed to any person and have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. A precise assessment of fighting words cannot be made. For instance, the press has the duty not to misrepresent or distort or over emphasise certain speech/words out of the context, thereby creating a wrong impression in the minds of the readers who may think the speaker used an offending expression. If the editor does not discharge his duty faithfully, it means that he is committing two wrongs. First, he creates a wrong impression in the minds of the people about the speaker, thereby violating editorial ethics. Secondly, the editor makes the speaker violate the exception to free speech. Thus, it is not the speaker as such but the editor who becomes responsible for the fighting words. The term expression has two limbs. First comes the physical act of expressing. Use of public address system and electronic media come under this. A person may have a good idea that he wants to propagate, but he needs either a loudspeaker or any such means to reach his audience. Thus for an effective exercise of freedom of speech, one must also have the freedom to use an appropriate means of propagation; and without the latter the former becomes ineffectual. Tabloids, as against big newspapers run by corporations, and websites have become effective vehicles in a democracy, as against media influenced or run by pressure groups of different hues. Press is a vehicle to carry speech to a larger audience. Often offending statements of leaders of political parties are carried in the newspapers. This happens especially during elections. The Supreme Court has issued directions to the Election Commission to frame guidelines to stop surrogate political advertisements in media. Second aspect of the term expression is the content. A ground upon which the matter is to be analysed is as follows: a speech might contain an expression which may or may not be offensive ordinarily, may become offensive in other situations where it has an emotional content. Such expressions are protected, provided they have little effect on persons hearing the same. In Kallara Sukumaran Vs. Union of India,17 a Minister in Kerala made a speech at his party convention. He was critical of the neglect of the development of the State by the Union Government and exhorted for a Punjab model agitation against Union Government. Taking into consideration the volatile situation in Punjab then, this phrase was regarded as something against the integration of India. Thus it became an offending speech. Media freedom has two dimensions: the absence of arbitrary power of interference and the ability to express oneself. But the unregulated freedom has its defects. Media could become selective in publishing news and views, for they might have their own interests to serve, especially when it is organised as a business. Monopolistic tendencies of the big business houses play a crucial role in the realm of press because of the very fact that press would help them in protecting their interests by distorting public opinion and/or creating an opinion favorable to them. Even the governments might try to influence press-people covertly by offering favours.18 Conclusion Though press enjoys the fundamental right of free speech on par with individual citizen, it is more powerful than that of ordinary citizens because it is organised. The press rightly enjoys the free speech right. But there are also certain negative aspects, which cannot be ignored. As it has already been pointed out, the press instead of being a noble profession is largely being considered a business. This commercialises the press. Some papers sometimes indulge in what is known as trial by press even before the alleged offenders are brought before the court. Sometimes some newspapers and photojournalists (popularly known as paparazzi) peep through the keyholes and invade the privacy, especially the privacy of celebrities. Such publications by the media lead to infringement of privacy and sensationalising of issues to increase the readership. This is not conducive to public interest. Though there is Press Council of India, which insists on a moral code of conduct for journalists, often commercialisation, politicisation and other selfish interests of individuals gain upper hand. What can be done in this context? The function of law must be to find out ways and means to restore public debate and free flow of information through the media. This may need restricting of monopoly trends in the media business and relevant laws to protect journalists. Law must also look into the problem of media violation of individuals rights. Apart from commercial interest, political power too vitiates the press. From the point of view of human rights, this is not a healthy trend. To quote Palkhivala: Openness is a concomitant of a free society. Men in power try to control and corrupt the press because they would not like anything to be known by the public which would detract from the respect, the acclaim and adulation to which they think they are entitled. This creates a conflict between rulers who are keepers of secrets and the press who are the tellers of tales.

In the United States, where freedom of the press is much respected and considered almost sacred, erosion of the freedom was witnessed. On October 27, 2006 Tom Regan wrote: 19 The news media advocacy organization Reporters Without Borders released their fifth annual World Wide Press Freedom Index this week, and it shows that the United States has dropped nine places since last year and is now ranked 53rd, alongside Botswana, Croatia and Tonga. The authors of the report say that the steady erosion of press freedom in countries like the US, France and Japan (two other countries that slipped significantly on the index) is very alarming. India comes far below in the index. From 80 in 2002 it came down to 120 in 2004. It is high time the Indian press introspected in this matter. Since the beginning of Iraq war in March 2003, more and more journalists have been imprisoned, attacked, kidnapped and killed throughout the world. In the words of Amnesty International: Across the world in a range of different situations, journalists are attacked, imprisoned and forced into self-censorship by repressive governments. The common element in all of these is the unwillingness of some governments to allow alternative voices to emerge and, in many cases, a fear that journalists will expose abuses they have tried to keep quiet. 20 Amnesty International continues: States have a duty to protect journalists and not to prosecute them in an effort to control the free flow of information. A free media is not only beneficial but necessary in a free society When faced with unjust restrictions and the threat of attack, self-censorship in the media can have the opposite effect, aiding the covering up of abuses and fostering frustration in marginalized communities. 21 If press freedom is attacked, it will result in the jeopardising of human rights because press reports human rights violations of authorities and powerful sections of the society. Free press does not mean that the State shall not intervene in its functioning; it shall intervene when the situation warrants. This intervention should only be in the interest of the public at large. But in the name of legal intervention, the State shall not impede the free flow of information that will go a long way in protecting and promoting human rights. But unfortunately, often suppression born from intolerance replaces healthy intervention. What is the result then? It amounts to suppressing the voice of the people. 22 If it continues, democracy would become meaningless.
1. John Milton, Areopagitica (1644). 2 See, Nani. A. Phalkhivala, We the Nation-the LostDecade (1994) p.291. From the speech he delivered at The Golden Jubilee Valedictory Function of the Indian Newspaper Society, Delhi, September 29, 1989 3 See, Julius Stone Social Dimensions of Law and Justice (1966) pp. 226-7 4 Article 19 (2) read thus: 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 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. 5 Romesh Thapper Vs. State of Madras, AIR 1950 SC 124, 128 6 Brij Bhushan Vs. State AIR 1950 SC 129, Express Newspapers (P) Ltd Vs. Union of India AIR 1958 SC 578, Sakal Papers (P) Ltd Vs. Union of India Air 1962 SC 305 7 AIR 1995 SC 264 8 9 Halsburys Laws of England (4th Edition) Vol. VIII Para 834 See, Law and Parliament (Ed: Dawn Oliver and Gavin Drewry 1998) The Strasbourg Court will hear appeals from petitioners who lose their cases about human rights violations in the United Kingdom courts. P.177 10 See, Tom Welsh, Walter Greenwood and David Banks, McNaes Essential Law for Journalists (18th Edition 2005) p.292 11 The scope of US press freedom has been determined principally by court decisions interpreting the nuances of the First Amendment. In general, the US courts have held that the press has a watch dog role over government and is not subject to prior restraint or registration. On the other hand, defamation, obscenity and publication of national security secrets have been generally determined not eligible for protection under the First Amendment. See http://krakow.usconsulate.gov/media_press.html accessed on 19th March 2007

12 K.A.Abbas Vs. Union of India (1970) 2 SCC 780 13 Chaplinsky Vs. New Hampshire 315 US 568, 572 and K.C.Chandy Vs .R. Balakrishna Pillai AIR 1986 Ker.11 14 R A V Vs. City of St. Paul 505 US 377 (1992) 15 Vishaka Vs. Rajasthan (1997) 6 SCC 241 16 The National Security Act, 1980 17 K.C.Chandy Vs .R. Balakrishna Pillai AIR 1986 Ker.11. 18 See Press Council of Indias report on favours to journalists. The report in its introductory paragraphs observes: The Press Council of India has held the government accommodation concessional land, free air tickets and company shares being given to journalists, new agencies and newspaper establishments and owners, are undue favours The Report has made detailed account of how the government influences the Press. http://www.nwmindia.org/Law/Bare_acts/press_council_guidelines.htm accessed on 3/26/2007 20 http://web.amnsty.org/web.nsf/ accessed on 19th March 2007 21 ibid 22 In this year (2007) itself the Press Freedom Barometer signals the danger. Throughout the world 16 Journalists killed, 5 Media assistants killed, 136 journalists imprisoned, 4 Media assistants imprisoned and 60 Cyber dissidents imprisoned. See, http://www.rsf.org/rubrique.php3?id_rubrique=20 accessed on 6/23/2007

BENNETT COLEMAN V. UNION OF INDIA: CRTIQUE

Print this

The Freedom of the press encompasses within itself two freedom rights guaranteed by Article 19 of the Indian Constitution. Those are Freedom of Speech and Expression and Freedom to carry on Trade, Business and Occupation. Restrictions can be imposed on either of the rights as long as the pith and substance of those restrictions fall within the respective restrictions set out by Article 19 and the restriction does not severely infringe upon the other freedom right. The State is entitled to impose restriction on the freedom of Press in the interest of the general public since the freedom of the press is accompanied by the public right to be educated and informed .
Under the writ petition before the Supreme Court of India, Bennett Coleman Company challenged the sub clauses (3) and (3A) of Clause 3 of the Newsprint Control Order, 1962, passed by the Government of India under Section 3 of the Essential Commodities Act, 1955 and the provisions of the Newsprint Import Control Policy for 1972-73 of being violative of Article 14 and Article 19(1)(a) of the Constitution. In the year 1972-73, on account of suspension of U.S. aid, there was a reduction of 11,000 tonnes in the import of newsprint and thus a policy was enacted for equitable rationing of the newsprint. The order was challenged on the grounds that Clause 3 of the Order affect the volume of circulation, the size and growth of a newspaper and thus directly infringe Article 19(1)(a) of the Constitution. The Newsprint policy was contended to be violative of Article 19(1)(a) since :1. No newspaper could be started by a common ownership unit even in the authorised quota.

2. A limitation was imposed on the maximum number of pages to be 10 and pages were not allowed to be increased by adjustment between circulation and page numbers. 3. Newsprint quota of newspapers of the same ownership could not be transferred. The majority judgement delivered by A.N. Ray J. for himself, Sikri J. and Reddy J. held that the Newsprint policy violated Article 14 and 19 and in a separate judgement Beg J. concurred with the conclusions. The dissenting judgement was delivered by Mathew J. holding the policy and order to be valid. Article 19(1)(a) and Article 19(1)(g) Freedom of press imbibes both the freedoms guaranteed under 19(1)(a) and 19(1)(g). If the restrictions are placed on the freedom of the press, a serious problem is encountered in deciding whether the impugned restrictions should satisfy both restrictions set out in 19(2) and 19(6) or any one of them. In Sakal Papers v. Union of India, it was contended by Union of India that there are two aspects of the activities of the newspapers- the dissemination of news and the commercial aspect. The government can place restriction under 19(6) in the interest of the general public on the commercial aspect of the press. But the Court held that the State cannot curtail one freedom by placing restriction on other since the restrictions that can be placed for that right are different. It further stated that the State cannot restrict one freedom for the purpose of better enjoyment of other right. It said that it is irrelevant to look at the restrictions on the business to determine a question relating to the freedom of speech and expression.[1] The newsprint policy of 1972-1973 imposed restrictions on the circulation, page numbers and new editions because of the limited supply of the newsprint, the group of newspapers claimed infringement of the freedom of speech and expression. Justice AN Ray speaking for the majority adopted the reasoning of the Sakal Papers and directly dealt with the question whether the direct effect of the policy could be observed on the freedom of speech and regulation or not.[2] It is submitted that this approach of the court to discard the test of checking whether the restrictions are justified under 19(6) or not and directly addressing the question of direct effect on the freedom of speech and expression is incorrect. The court in Indian Express, addressing the question if taxes are burdensome on the newspaper industry, stated that the newspaper industry enjoys two of the fundamental rights under Article 19(1)(a) and Article 19(1)(g) of the Constitution, the first because it is concerned with the field of expression and communication and the second because, communication has become an occupation or profession and because there is an invasion of trade, business and industry into the field where freedom of expression is being exercised. The court concluded that the tax can be imposed on the business part of the newspaper and it will be unconstitutional only if it stifles the freedom of speech and regulation.[3] Thus in the Indian Express, it was held that there could be a restriction imposed on the business part of the industry even if it affects the scope of freedom of speech and expression. Pith and Substance OR Direct Effect

The direct effect traces it origins to the Bank Nationalization[4] case and was also applied in Express Newspaper [5]case also. The court in that case held that the Working Journalist Act was a beneficial act and the direct effect was not to abridge the freedom of speech and expression. The Additional Solicitor General in Bennett Coleman contended that only the subject matter should be examined to test the violation and not the effect of the result and result of the legislation. It was contended that since the legislation was not meant to control the supply, production and distribution of the legislation it was not void. The content of the speech is not controlled and thus all the incidental encroachment should be ignored. [6] The court rejected this approach altogether and held that the true test is whether the effect of the impugned action is to take away or abridge fundamental rights. The court elaborated that the word direct would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it is established that the fundamental right is infringed. Justice AN Ray concluded that the restrictions are to control the number of pages or circulation of dailies or newspapers and these restrictions fall outside the ambit of Article 19(2) of the Constitution.[7] Since the direct effect of the restriction is upon the growth of the paper, it would necessarily mean that the direct effect is on the freedom of speech and regulation.[8] In the dissenting opinion Justice Mathew said that the regulation of speech is different from abridgement of freedom of speech. He stated that it is important to establish what abridge means in Article 13(2). The regulation is not null if it is aimed to control other activity, but incidentally and remote effect can be tolerated.[9]Justice Mathew relied heavily on American authorities to arrive at his decisions. He placed reliance on the decision of the United States Supreme Court to assert that if the governmental interest is unrelated to the suppression of free expression and the freedom of speech is no greater than is essential to the furtherance of that interest, then the government action is sufficiently justified.[10] In reaching his decisions, Justice Mathew accepted the petitioner contention that the direct effect was to control the circulation and the page numbers but he differed from the majority in concluded that the control of the circulation and page numbers does not mean abridgement of freedom of speech but of only speech.[11] Seervai submits that determination of direct or incidental effect will create problems since it would restrict the governments right to regulate and restrict a right in one particular area. He suggests that the best way is to determine the pith and substance of the rule. If the pith and substance falls squarely within the relevant restriction, then an incidental transgression on other rights wont nullify the rule.[12] It is submitted that this approach though a better one then employed by the Supreme Court is not complete. The pith and substance test provides certain legitimacy to the act or the rule. The act/order, if shown to fall under one of the restrictions, would have to severely violate the other right to be unconstitutional. In other words if the benefit by regulating one right far outstrips the detriment caused by incidental restriction on other right, then the act/order should be valid.[13] The question that the bench in Bennett Coleman after applying the direct effect test attended was whether the legislation determining the number of pages, amount of circulation and new editions has a direct effect on the freedom of speech and expression. Alternatively, if the court had applied the pith and substance test keeping in mind the apparent conflict between 19(2)

and 19(6), the court would have addressed the question whether the legislation determining number of pages, circulation and new editions is in pith and substance, legislation for regulating the business in public interest as permitted by 19(6). After establishing the pith and substance of the order, it is necessary to check if the restriction in 19(6) is such that it adversely affects the freedom of speech and expression since the State under the guise of placing restriction on freedom of business cannot restrict the freedom of speech and expression of the press. Right of being informed It has been established that freedom of press consists of freedom of speech and expression and freedom to carry on trade. The scheme of Article 19 is such that freedom of Speech does not allow restrictions to be made in the interest of general public but freedom of trade does. The State contended that the Newsprint policy controls the concentration of ownership in the hands of select few and ensures the growth of small newspaper companies.[14] Justice AN Ray replied that there were other ways of promoting the growth of the newspapers. It is submitted that the question of public interest can be analysed by a different angle. The Constitutional guarantee of the freedom of speech is not so much for the benefit of the press as it is for the benefit of the public. Ray J. did not address this question but this argument formed the cornerstone of Justice Mathews dissenting opinion. He stated that the function of the newspaper industry is to furnish news from different and antagonistic sources for the welfare of the public. Mathew J. provided American authorities to justify his assertion that concentration of power in the newspaper industry is seriously detrimental to the press since through the concentration of the ownership, the variety of sources of news and opinion becomes limited. He held that any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech. He concluded that freedom of speech does not mean unlimited use of newsprint.[15] It is submitted that the freedom of the speech encompass the right to read and be informed. In Indian Express it was held that the press has a fundamental right to express itself, but also because the community has a right to be supplied with information and the Government a duty to educate the people within the limits of its resources. The press helps the democratic set -up by publishing facts and opinions and allowing public to form an opinion based on varied sources.[16] The court citied the International Commission for the Study of Communication Problems to assert smaller newspapers and some parts of the quality or specialized press have experienced difficulties from a contraction of operations and size, which has led to limitations on the variety of information sources. This has induced many governments to examine the possibility of subsidies to help keep newspapers alive or to establish new ones, in monopoly circulation areas and to promote plurality and variety in general.[17] The court in Indian Express concluded that heavy tax should not be imposed since the imposition would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself about the world around him.[18] Thus in the interest of the public the freedom of the press can be restricted but then again it is for judicial determination

how much of restriction can be permitted on freedom of speech and expression so that freedom of trade and business is not severely impaired. Conclusion The majority judgement was short sighted in its approach since it failed to see the real freedom guaranteed by the freedom of press and State right to impose restriction on different freedom right. Though the Supreme Court has held that Article 19(1)(a) includes freedom of press, it is submitted that it is not exclusive of other freedom rights guaranteed by Article 19. Moreover interest in freedom of press are first of the public and then of the small newspaper industry. The dissenting opinion of Mathew J. partly adopted the approach but basically followed the direct effect test to reach different conclusions. From the foregone discussion it is concluded that this approach of the court in deciding a question about a legislation/order infringing upon the freedom of press is incorrect.

[1] Sakal Papers v. Union of India, MANU/SC/0090/1961, Para 40 and 41. [2] Beg J. said that it is unnecessary to address the reasonability of restriction since the restrictions are not law and thus cannot restrict the freedom of speech and expression. Bennett

Coleman v. Union of India, MANU/SC/0038/1972, Para 169. [3] Indian Express v Union of India, MANU/SC/0340/1984, Para 63.
[4] (1970) 3 S.C.R. 532. [5] Express Newspaper Pvt. Limited v. Union of India, (1959) S.C.R. 12. [6] Bennett Coleman, Para 36 and 37. [7] Ibid, Para 39. [8] Ibid, Para 43. [9] Ibid Para 105. [10] Bennett Coleman, Para 105. [11] Ibid, Para108. [12] HM Seervai, Page no. 913 [13] An instance of this situation is a restriction on monopolies in the newspaper industry would not be unconstitutional just because the freedom of speech and expression is being violated. [14] Bennett Coleman, Para 28. [15] Bennett Coleman, Para 123-127. [16] Indian Express, Para 36. [17] Indian Express, Para 83.