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Comparison of freedom of press in India to the other developed nations: -

It is most humbly submitted before this Hon’ble Supreme Court that the India is progressive
nation which is achieving several recognitions in the world but it lags in the field of freedom of
press as compared to many developed nations.
SCENARIO IN INDIA:
Freedom of press is not expressly provided under the Constitution of India. It is implied from the
freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution of India .1
In interpretation of this guaranteed right, Patanjali Shastri, J., in Romesh Thapper v. State of
Madras2, remarked that “there can be no doubt that freedom of speech and expression includes
freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.
Indeed, without circulation the publication would be of little value.” Likewise, interpreting the
words “freedom of speech and expression” the Madras High Court observed that “the term
‘freedom of speech and expression” would include the liberty to propagate not only one’s own
views but also the right to print matters which are not one’s own but have either been borrowed
from someone else or are printed under the direction of that person.”3Hence “liberty of press is
an essential part of the right to freedom of speech and expression declared by Article 19 (1) (a)”4
However, being a right emanating from the freedom of speech and expression, the freedom of
press in India stands on an equivalent footing as that of a citizen. In other words, press enjoys no
privilege distinct from that guaranteed to a citizen. Like any other freedom, the freedom of press
is not absolute. It is subjected to reasonable restrictions as mentioned under Article 19(2). Thus,
the guarantee of the above right would not affect the operation of any existing law, in so far as it
is related to, or prevent the state from making any law relating to libel, slander, defamation,
contempt of court or any matter which offended against the decency or morality or which
undermined the security of or which tended to overthrow the state.

Reasonable restrictions
Article 19 (2) allows the State to make laws with the object of imposing reasonable restrictions
on the exercise of the right conferred by Article 19 (1) (a) in the interest of:
a. Public Order and Security of State
If an act has tendency to cause public disorder it would be a valid ground under Article 19 (2) to
impose restrictions, even though it may not lead to breach of public order. Public order is a state
of tranquillity that prevails amongst the members of a political society because of the internal

1
The Constitution of India as amended by The Constitution (100th amendment Act ,2015)
2
1950 S.C.R 594 at 597
3
Srinivasa Bhat v. State of Madras, A.I.R. (1951) Madras 70 at 73
4
Brij Bhushan v. State of Delhi, 1950 S.C.R.605 at 608

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regulations enforced by the Government which they have established.5And “security of state”
refers to a serious and aggravated form of public disorder. The speeches and expressions which
encourage violent crimes are related to security of State.6
b. Defamation
Defamation is an injury to the reputation of a person. Freedom of press is mostly related to libel
which is written defamatory statement. If a person’s reputation is harmed without justifiable
reason, he can be prosecuted for the criminal wrong of defamation. The law of criminal
defamation is contained in section 499 and 500 of Indian Penal Code. Supreme Court
in Philadelphia Newspapers, Inc. v. Hepps, held that private individuals suing for libel must prove
the statement was false if it involved a matter of public concern.7
c. Contempt of Court
While exercising the right of freedom of expression one should not commit contempt of court or
make any comment which could be contempt8. The newspapers and media channels have right
to publish reports on the proceedings of the court, subject to the orders of the court resolving
the dispute. If the court specifically orders not to publish an evidence of a witness, that cannot
be called as an invalid order. However, truth of criticism against curt by media is available as a
defence available to writer or press or media to the charge of contempt of court.
d. Incitement to an offence
If any words written or spoken incite the commission of violent crimes, which include attempts
to insult the religious beliefs of any class, reasonable restrictions can be imposed. Promotion of
disharmony among the classes also can be restricted on the same ground. In State of Bombay v.
Balsara9the Supreme Court upheld the validity of section 24(1) (b) of the Bombay Prohibition
Act, 1949. It if no person shall print or publish in any newspaper, news sheet, book, leaflet or any
other single or periodical publication or otherwise display or distribute any advertisement or
other matter which is calculated to encourage or incite any individual or class of individuals or
the public generally to commit an offence under the Act.
e. Friendly relations with foreign states
This is another ground justifying the restriction on freedom of speech and expression. State
cannot however prevent all the criticism of foreign policy of the Government. The Covenant on
Freedom of Information and the Press prepared by the United Nations Conference at Geneva

5
Ramesh Thapper v State of Madras, AIR 1950 Sc 124
6
State of Bihar v ShailaBala, AIR SC329
7
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)
8
E.M.S Namboodiripad v. T.N. Nambiar, AIR 1970 SC 2015
9
1951 AIR 318

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provide for necessary legislative restrictions being placed about the “systematic diffusion of false
and distorted reports which undermines the friendly relations between people and states.”10
f. Decency and morality
In Regina v Hicklin11 the court adopted the test of obscenity, which is known as the Hicklin test.
The test of obscenity is to note whether the tendency of matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences. Freedom of
speech and expression can be reasonable restricted in case it hampers with the decency and
morality.
g. Sovereignty and integrity of India
This ground was added subsequently in 1963 by the Constitution (Sixteenth Amendment). This is
provision is aimed at prohibiting anyone from making the statements that challenge the integrity
and sovereignty of India.
In Rajendra Sail v. M.P High Court Bar Assn12, the editor, printer publisher and reporter of a
newspaper, along with the petitioner who was a labour union activist, were summarily punished
with a six months’ imprisonment by the High Court. Their fault was that they published
derogatory remarks against the judges of a High Court. The Supreme Court held it to be
contempt of court. In D.C Saxena v. Chief Justice of India13, the Supreme Court held that no one
has the power to accuse a judge of his misbehaviour, partiality or incapacity. The purpose of
such protection is to ensure independence of judiciary.
Freedom of press and media is recognized as an essential attribute of a parliamentary
democracy. “A free press is the mother of all liberties and of our progress under liberty.” Justice
Jeevan Reddy and Justice B.N. Hansaria in the Printers (Mysore) Limited v. State of Karnataka
stated that “freedom of press has always been a cherished right in all democratic countries. The
democratic credentials of a State are judged today by the extent of freedom the press enjoys in
that state.” For the proper functioning of any democracy it is important that citizens are kept
informed about what is happening within the country. Press and media serves as an agency of
the people; bringing forward the real picture of the society. Hence the freedom of press and
media is a necessary pre-requisite in fulfilling the democratic ideologies.
Besides, a free and vigilant press is vital to prevent corruption and injustice, at least to the extent
that public opinion can be aroused because of press investigations and comments. In fact, the
main purpose of the free press is to create a fourth institution outside the government to serve
as an additional check on the three organs of government namely executive, legislative and
judiciary.

10
Art. 2 (j) of the Covenant on Freedom of Information and the Press
11
[1968] 3 QB 360
12
[2005] INSC 272 (21 April 2005)
13
1996 SCC (7) 216

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Thus, the state has general power to impose reasonable restrictions. Also, it must be noted that
these restrictions should not be arbitrary and excessive. There should be a balance between the
freedom guaranteed and the community interest protection.

COMPARISON WITH THE AMERICAN CONSTITUTION


The United States has one of the world’s strongest systems of legal protection for freedom of
the press. The First Amendment of the U.S. Constitution provides the core guarantee of press
freedom and freedom of speech. It reads Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble and to petition the
government for a redress of grievance.14 Article 19(1) (a) finds its roots in the First Amendment
to the Constitution of the United States of America.
Unlike the Indian Constitution, the First Amendment to the American Constitution makes a
specific or separate provision for the freedom of press. Further, while the restriction on the right
to freedom of speech and expression are expressly spelt out in Article 19(2), this is not so under
the First Amendment. The US Supreme Court has read into the rights of the press certain implicit
restrictions which are, in principal, no different from Article 19(2). One such restriction is the
defamation law. The courts have given the press broad protection from libel and defamation
suits that involve commentary on public figures, though libel formally remains a criminal offense
in several states. In deciding New York Times Co. v. Sullivan15, The Supreme Court held that when
a publication involves a public figure, to support a suit for libel, the plaintiff bears the burden of
proving that the publisher acted with "actual malice,"
Under the American Constitution, the free press clause protects the rights of individuals to
express themselves through publication and dissemination of information, opinions and ideas
without the interference from the government. In Miami Herald Publishing Co. v. Tornillo16, the
Court unanimously struck down a state law requiring newspapers criticizing political candidates
to publish their responses. The state claimed that the law had been passed to ensure press
responsibility. Finding that only freedom, and not press responsibility, is mandated by the First
Amendment, the Supreme Court ruled that the government may not force newspapers to
publish that which they do not desire to publish. In Branzburg v. Hayes 17this right was described
as a fundamental right that is not merely confined to newspapers and periodicals. In Lovell v. City
of Griffin,18”press” was defined as “every sort of publication which affords a vehicle of
information and opinion. This right has been extended to include newspapers, books, movies as

14
US Constitution , First Amendment , Article 1
15
376 U.S 254 (1964)
16
418 U.S 241
17
408 US. 665
18
Lovell v. City of Griffin, 303 U.S. 444

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well as video games. Similarly, people who blog, Twitter or use other social media are protected
equally by the free speech and free press clause. In Obsidian Finance Group, LLC. v.Cox (2014)
The United States Court of Appeals for the Ninth Circuit held that a blogger is entitled to the
same free speech protections as a traditional journalist and cannot be liable for defamation
unless the blogger acted negligently. As far as India is concerned, Section 66A of the Information
Technology Act, 2000, had criminalized the publishing of any information on Facebook, Twitter
and other website that could be deemed to be "false, or was for causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.
However recently on 24th March 2015, in Shreya Singhal v. Union of India, the court struck down
section 66A of the Information Technology Act 2000 both in terms of “liberty of the individual”
and from the point of view of democratic governance.
Thus, it can be concluded that for the most part, from a legal and social viewpoint the freedom
of the press in America is far more robust in comparison to the Indian guarantee.

Freedom of press is central to the survival of democracy. Democracy without the free movement
of the press is a misnomer. However, it must be remembered that this freedom is not absolute
unlimited and unfettered always and in all circumstances as providing unrestricted freedom of
speech and expression would amount an uncontrolled license. All freedoms are subjected to
reasonable restrictions, the absence of which would lead to disorder and anarchy. In the words
of Mahatma Gandhi, “"The role of journalism should be service. The Press is a great power, but
just as an unchained torrent of water submerges the whole countryside and devastates crops,
even so an uncontrolled pen serves but to destroy." In an organized society, the rights of press
are to be recognized with its duties and responsibilities towards the society. The wide power of
press freedom shall not be utilized for wrong doings. The presentation of the news must be
truthful and comprehensive without any distorted expression. Thus, press has a greater
responsibility to guard against false news and publications for the simple reason that its
utterance can have greater circulation and impact on the people at large. Apart from this, there
is also essential to strike a proper balance between citizen’s right to privacy and public’s right to
information vis-a-vis the role of media so that none of the rights as guaranteed to the citizen’s
conflict with each other. To quote our former Prime Minister, “Freedom of press is an Article of
Faith with us, sanctified by our Constitution, validated by four decades of freedom and
indispensable to our future as a nation.”

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