“India is a vibrant democracy and the fourth estate is indubitably an indispensable part of it. If the voice of the fourth estate is stifled, India will become a Nazi State and the hard labour of our freedom fighters and makers of our Constitution will go down the drain.”

-Justice PN Prakash

What is Freedom of Media and Hoe It Has Come into Effect

 Media is considered as forth pillar of democracy and it is well established that if media freely exchanges its ideas, information and knowledge, people will be able to form their own idea and will question the decisions of government logically.

During the pre-independence period, Indian Press was subject to several shackles by the British authority. Vernacular Press Act, 1878; Indian Press Act, 1910 & Indian Press (Emergency) Act, 1931 etc were used in impeding the growth of press. After 1947, such principles changed and freedom of press was substantiated.

The freedom of media is drafted impliedly under Article 19(1) (a) of the Constitution, and under Article 19(2), the limitations to this freedom are stating that no one can publish anything which goes against the provisions of 19(2).

Reasonable Grounds of Restriction under Article 19(2):

·         Friendly relations with foreign states and Security of State–

Saving the fair and just criticism of foreign political ideology, this ground is placed as restriction on the “freedom of speech and expression” so that the diplomatic relation between two countries is not maligned and any internal or external encroachment does not take place. Otherwise it will be a reason of discomfiture for India.

·         Public Order –

When in the case of Romesh Thappar v. State of Madras, the Court held that minimal fissure in the public order cannot restrict the “freedom of speech and expression” and restrictions can be imposed only on the grounds mentioned under Article 19 (2) of the Indian Constitution, then The Constitution (First Amendment) Act, 1951, added this ground of restriction.

·         Decency or morality:

There is no specific definition of the decency or morality in law but it has greater ambit than the term “sexual morality”. The meanings of such terms change with time and vary with the societal norms. This ground restricts any speech and publication degrading the public morals.

·         Contempt of Court:

Both the Supreme Court and High Courts are entrusted with powers under Articles 129 and 215 of the Constitution of India respectively to punish its contempt. The main idea behind the Contempt of Courts Act, 1971 is that judicial system and respected Judges cannot be criticized if it is not for greater public good or if it is not hindering with the fair delivery of justice.

·         Defamation:

Covered under Section 499 of Indian Penal Code, 1860; demotion is held as a ground of restriction because according to the Indian Constitution, the “freedom of speech and expression” cannot infringe “right to reputation” of any citizen.

·         Incitement of an offence:

According to the General Clauses Act, “offence” means, a breach of law or rule, which mainly stands as illegal act under the law of the land. The Constitution of India does not allow anyone misusing the “freedom of speech and expression” to agitate and provoke anyone to commit any offence/ crime.

·         Integrity and Sovereignty of India:

The Constitution (Sixth Amendment) Act, 1963 added this extra ground of restriction under Article 19(2).[1]

Case Laws Supporting Freedom of Media:

Sakal Paper (P) Ltd., And Others v. Union of India[2]

As per the Newspaper (Price and Page) Act, 1956 Central Government could regulate the prices of newspapers as per their maximum pages and size and could also regulate the allocation of space for advertising matters. The petitioners had to increase the price of their newspaper if they wanted to increase the page and vice versa.

The petitioners challenged the order as it was direct transgression from the freedom and liberty of the press since its endorsement indicated mandatory cutting down the existing number of pages or raising the price.

The Court held that the Act was void, since it was antithetical to Article 19(1) (a) of the Constitution and was not eligible to be covered under the restrictions compiled under Article 19 (2).

R. Rajagopal v. State of T.N[3]

 The Court upheld that there is no express law or provision which empowers the government to apply “prior restraint” on any libelous publications against the officials but later on, if it is proved that such publication was based on false facts then the authority can ask for compensation or take action against this damage.

In Brij Bhusan v. State of Delhi[4]

The Chief Commissioner of Delhi, issued an order as per Section 7 of the East Punjab Safety Act, 1949, against the “printer”, “publisher” and “editor” of the magazine named “Organiser”, asking them to submit all second copies of articles related to India- Pakistan communalism issue. But Court nullified the order stating that, this order violates the “freedom of speech and expression” and upheld that the correspondents of the journals are allowed to give their own perspective on any sensational news of country.

Romesh Thappar v. State of Madras[5]

Here the Government of Madras, prohibited the circulation of a specific journal named “Cross Road” in Madras under the “Maintenance of Public Order Act, 1949”. The Court held state order invalid stopping the circulation of journal clearly inhibits the “freedom of propagation of ideas” and this restriction was invalidated because it was not authorized under Article 19 (2) of the Indian Constitution.

Case Laws Where the Power of Media Is Subdued by Court:

Rajendra Sail v. M. P. High Court Bar Association and Others[6]

In the murder trial of a trade union leader, Shankar Guha Niyogi, the accused were sentenced to life imprisonment except one who was awarded death sentence. But after appealing against the trial court judgement, the High Court acquitted the accused.

Based on the comment made by Rajendra K Sail, President of Chhattisgarh People’s Union for Civil Liberties (PUCL), a news report was published in newspaper ‘Hitavada’ on 4th July, 1998, stating the court’s decision as “rubbish”. The inherent conclusion of the news report was that a Judge who was on verge of retirement should not have been conferred with the responsibility of dealing with such a crucial case. This news report was considered as contempt of court.

It was inferred that though media is entitled to criticize, analyze any judicial act or the judgment for public good in a somber way but it should not cast any salacious remark or any personal bias to the judge.

The Case of Privacy:

The Supreme Court’s landmark right to privacy order reevaluated the boundaries on the freedom of the press when the Madras High Court restrained a media house from publishing articles concerning the private life of Kanimozhi Karunanidhi. 

It was determined that no one can impose any blanket injunction (An injunction issued against multiple activities, or against multiple parties with respect to the same activity, or both) on the right of press to publish, the Court accentuated that the media “cannot take the excuse of public interest to publish anything which seem interesting before them”. Justice Subramaniam remarked on this aspect, “all matters in which the public takes interest may not be in public interest.”[7]

Control on Commercial Advertisement:

Hamdard Dawakhana (Waqf) Lal v. Union of India and Others[8]

The Supreme Court considered the question of whether advertisements are also protected under Article 19(1)(a). This is a landmark case where Supreme Court started to control the advertisement sector too. The Court stated that original attribute of an advertisement can be decided by the object it is promoting.

Advertisement promoting drugs and commodities cannot claim the protection under Article 19(1) if the sale is not in public interest. And the noteworthy point here is that advertisement is there to make progress in business, so it falls under the head of trade and commerce and cannot be regarded as a part of freedom of speech.

But later in a conflicting judgement of Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, the Supreme Court observed that in some cases the commercial advertisements will be protected under Art. 19(1) (a) of the Constitution, and the right will not be denied merely because it is used by a businessman.

Measures Taken by Several High Courts to Restrict the Media:

·         Investigative journalism house Cobrapost started a documentary titled ‘Operation 136: Part II’ and accused various media houses of being paid news outlets. When Dainik Bhaskar pleaded against this in Delhi High Court, an ex parte interim stay was released on the documentary.[9]

·         In April, 2018, the Patiala House Court restrained media house which was reporting on the investigation in the medical college bribery case registered against former high court judge, Justice IM Quddusi. Because court was of the view that this publication was bound to bring disrepute to the plaintiff, so the restrain was necessary.[10]

·         In August 2018, anticipating that press report will hamper the investigation and trial, the Patna High Court curtailed the media from reporting on the Muzaffarpur Shelter Home case but notwithstanding any point mentioned by Patna HC, Supreme Court requested the media to give impartial and unbiased review and report on the case.

·         The Bangalore City Civil Court took action of passing an interim injunction over forty media houses and social networking sites from publishing any disparaging material against BJP candidate Tejasvi Surya after he filed defamation suit in the civil court after several newspapers made false allegations on his name.[11]

Conclusion

Thus from the above piece, we got to know there are numerous factors which make media partial. Racial, religious, political factors cloud the transparency of media. The news portrayal is not always perfect due to the competition and also due to the general feeling of controlling the viewers i.e. a large percentage of population. To stop this genuine hazard and to make the media more trustworthy the government legislatures should be more effective and strict.

[8] 1960 AIR 554 SCR(2)671