Freedom Freedom of expression in India From Wikipedia, the free encyclopedia
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The Constitution of India contains the rig ht to freedom, given in articles 19, 1 9, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the Freedom of speech and expression,, as one of following six freedoms:[1] expression
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1 Constitutional law 1.1 Restrictions o 2 Practical Constraints and Curtailments 3 Sedition 4 Bibliography 5 References
edit]] Constitutional law [edit Main Article Fundamental Rights in India In a landmark judgment of the case Maneka case Maneka Gandhi v. Union of India, India,[2] the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abr oad also. The constitution of India does not specifically mention the freed om of press. Freedom of press is implied from the Article 19(1)(a) of the Constitution. T hus the press is subject to the restrictions that are pr ovide under the Article 19(2) of the t he Constitution. Before Independence, there was no constitutional or statutory provision to protect the freedom of press. As observed [3] by the Privy the Privy Council in Channing Arnold v. King Emperor : ³The 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´. s ubject´. 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 express ion under the Ar ticle 19 of the UDHR The hear t of the Ar ticle 19 says: ³Everyone has the r i ht to freedom of opinion and expression, this r i ht includes freedom to hold opinions without interference and to seek, receive and impar t information and ideas through any media and regardless of frontiers.´ [ ]
In Romesh Thapar v. State o f Madras, Patan jali Shastr i, C observed: ³ 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 possi ble.´ The Supreme Cour t observed in Union o f Ind ia v. Assn. f or Democrat ic Re f orms:[ ] ³Onesided information, disinformation, misinformation and non information, all equally create an uninformed citi enry which makes democracy a farce. Freedom of speech and expression includes r ight to impar t and receive information which includes freedom to hold opinions´. In Ind ian Express v. Union o f Ind ia,[6] it has been held that the press plays a very signif icant role in the democratic machinery. The cour ts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abr idge that freedom. Freedom of press has [7] three essential elements. They are:1. freedom of access to all sources of information, 2. [ ] freedom of publication, and . 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 o f Ind ia,[8] the Daily Newspapers (Pr ice and Page) Order, 1960, which f ixed the number of pages and s i e which a newspaper could publish at a pr ice was held to be violative of freedom of press and not a reasonable restr iction under the Ar ticle [9] 19(2). Similar ly, in Bennet C ol eman and C o. v. Union o f Ind ia, the validity of the Newspr int Control Order, which f ixed the maximum number of pages, was struck down by the Cour t holding it to be violative of provision of Ar ticle 19(1)(a) and not to be reasonable restr iction under Ar ticle 19(2). The Cour t struck down the plea of the Government that it would hel p small newspapers to grow. In Romesh Thapar v. State o f Madras (19 0 SCR 9 , 607; AIR 19 0 SC 12 ), entry and circulation of the English journal ³Cross R oad´, pr inted and published in Bombay, was banned by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as ³without li ber ty of circulation, publication would be of little value´. In Prabha Dutt v. Union o f Ind ia ((1982) 1 SCC 1; AIR 1982 SC 6.), the Supreme Cour t directed the Super intendent of Tihar Jail to allow representatives of a few newspapers to interview R anga 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 author ity of the government, in such circumstances, has been under the scanner of judiciary. In the case of Br ij Bhushan v. State o f Del hi (AIR 19 0 SC 129), the validity of censorshi p previous to the publication of an English Week ly of Delhi, the Organiser was questioned. The cour t struck down the Section 7 of the East Pun jab Safety Act, 19 9, which directed the editor and publisher of a newspaper ³to submit for scrutiny, in duplicate, before the publication, till the fur ther orders , all communal matters all the matters and news and views about Pak istan, including photographs, and car toons´, on the ground that it was a restr iction on the li ber ty of the press. Similar ly, prohi biting newspaper from publishing its own views or
views of correspondents about a topic has been held to be a ser ious encroachment on the freedom of speech and express ion.[10]
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The freedom of speech and of the press does not confer an absolute r ight to express without any responsi bility. Lord Denning, in his famous book R oad to Justice, observed that press is the watchdog to see that every tr ial is conducted fair ly, openly and above board, but the [11] watchdog may sometimes break loose and has to be punished for misbehaviour. With the same token Clause (2) of Ar ticle 19 of the Indian constitution enables the legislature to impose reasonable restr ictions on free speech under fo llowing heads: y y y y y y y y
I. secur ity of the State, II. fr iendly relations with foreign States, III. public order, IV. decency and morality, V. contempt of cour t, VI. defamation, VII. incitement to an offence, and VIII. sovereignty and integr ity of India.
R easonable restr ictions on these grounds can be imposed only by a duly enacted law and not by executive action.[12] Secur ity of the State: R easonable restr ictions can be imposed on the freedom of speech and expression, in the interest of the secur ity of the State. All the utterances intended to endanger the secur ity of the State by cr imes of violence intended to over throw the government, waging of war and rebellion against the government, external aggression or war, etc., may be [1 ] restrained in the interest of the secur ity of the State. It does not refer to the ordinary [ ] breaches of public order which do not involve any danger to the State. Fr iendly relations with foreign States: This ground was added by the Constitution (First Amendment) Act of 19 1. The State can impose reasonable restr ictions on the freedom of speech and expression, if it tends to jeopardise the fr iendly relations of India with other State. Public order : This ground was added by the Constitution (First Amendment) Act, 19 1 in order to meet the situation ar ising from the Supreme Cour t¶s decision in R omesh Thapar, s case (AIR 19 0 SC 12 ). The expression µpublic order ¶ connotes the sense of public peace, safety and tranquillity. In Ki shor i Mohan v. State o f West Bengal , the Supreme Cour t explained the differences between three concepts: law and order, public order, secur ity of State. Anything that disturbs [1 ] public peace or public tranquillity disturbs public order. But mere cr iticism of the [1 ] government does not necessar ily disturb public order. A law punishing the utterances deli berately tending to hur t the religious feelings of any class has been held to be valid as it is [16] a reasonable restr iction aimed to maintaining the public order. It is also necessary that there must be a reasonable nexus between the restr iction imposed and the achievement of public order. In Super intendent, C entral Pr i son v. Ram Manohar Lohi a (AIR 1960 SC 6 ), the Cour t held the Section of U.P. Special Powers Act, 19 2, which
punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similar ly, the cour t upheld the validity of the provision empower ing a Magistrate to issue directions to protect the public order or tranquillity.[17] Decency and morality: The word µobscenity¶ is identical with the word µindecency¶ of the [18] Indian Constitution. In an English case of R. v. H ick lin, the test was laid down according to which it is seen µwhether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral inf luences¶. This test was upheld by the Supreme Cour t in R an jit D. Udeshi v. State of Maharashtra (AIR 196 SC 881). In this case the Cour t upheld the conviction of a book seller who was prosecuted under Section 292 , I.P.C., for selling and keeping the book The Lady Chatter ley¶s Lover. The standard of morality var ies from time to time and from place to place. Contempt of cour t: The constitutional r ight to freedom of speech would not allow a person to contempt the cour ts. The expression Contempt of Cour t has been def ined Section 2 of the Contempt of Cour ts Act, 1971. The term contempt of cour t refers to civil contempt or cr iminal contempt under the Act. But judges do not have any general immunity from cr iticism of their judicial conduct, provided that it is made in good faith and is genuine cr iticism, and not any attempt to impair the administration of justice. In In re Arundhat i Roy ((2002) SCC ), the Supreme Cour t of India followed the view taken in the Amer ican Supreme Cour t (Frankfur ter, J.) in Pennekamp v. F lo r ida ( 28 US 1 : 90 L Ed 129 (19 6)) in which the United States Supreme Cour t observed: ³If men, including judges and journalists, were angels, there would be no problem of contempt of cour t. Angelic judges would be undisturbed by extraneous inf luences and angelic journalists would not seek to inf luence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impar tially as is given to the lot of men to decide, is not a pr ivilege accorded to judges. The power to punish for contempt of cour t is a safeguard not for judges as persons but for the function which they exercise´. In E.M.S. Namboodr i pad v. T.N. Nambiar ((1970) 2 SCC 2 ; AIR 1970 SC 201 ), the Supreme Cour t conf irmed the decision of the High Cour t, holding Mr. Namboodr i pad guilty of contempt of cour t. In M.R. Parashar v. Farooq Abdull ah ((198 ) 2 SCC ; AIR 198 SC 61 .), contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Cour t dismissed the petition for want of proof. Defamation: The clause (2) of Ar ticle 19 prevents any person from mak ing any statement that in jures the reputation of another. With the same view, defamation has been cr iminalised in India by inser ting it into Section 99 of the I.P.C. Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 19 1. The Constitution also prohi bits a person from mak ing any statement that incites people to commit offence. Sovereignty and integr ity of India: This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 196 . This is aimed to prohi bit anyone from mak ing the statements that challenge the integr ity and sovereignty of India.
[edit] Practical Constraints and Curtail ents
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Freedom of speech and expression, which enable an individual to par tici pate in public activities. The phrase, "freedom of press" has not been used in Ar ticle 19, but freedom of expression includes freedom of press. R easonable restr ictions can be imposed in the interest of public order, secur ity of State, decency or morality.
According to the estimates of R epor ters Without Borders, India ranks 120th wor ldwide in [19] press freedom index (press freedom index for India is 9. for 2007). The Indian Constitution, while not mentioning the word "press", provides for " the r i ght to f reedom o f speech and expression" (Ar ticle 19(1) a). However this r ight is sub ject to restr ictions under subclause (2), whereby this freedom can be restr icted for reasons of "sovereignty and integr ity of India, the secur ity of the State, fr iendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of cour t, defamation, or incitement to an offence". Laws such as the Off icial Secrets Act and Prevention of Terror ism [20] Act (POTA) have been used to limit press freedom. Under POTA, person cou ld be detained for up to six months before the police were required to br ing charges on allegations for terror ism-related offenses. POTA was r epealed in 200 , but was replaced by amendments [21] to UAPA. The Off icial Secrets Act 192 remains in effect. For the f irst half-century of independence, media control by the state was the ma jor constraint on press freedom. Indira Gandhi famously stated in 197 that All India R adio is "a [22] Government organ, it is going to remain a Government organ..." With the li berali ation star ting in the 1990s, pr ivate control of media has burgeoned, leading to increasing independence and greater scrutiny of government. Organi ations like Tehelka and NDTV have been par ticular ly inf luential, e.g. in br inging about the resignation of powerful Haryana minister Venod Sharma. In addition, laws like Prasar Bharati act passed in recent years contr i bute signif icantly to reducing the control of the press by the government
[edit] Sedition According to the English Law, Sedition embraces all the practices whether by word or wr iting which are calculated to disturb the tranquillity of the State and lead an ignorant [2 ] person to subver t the Government. Mere cr iticism of the government does not amount to sedition, if it was not calculated to undermine the respect for the government in such a way so [2 ] as to make people cease to obey it and so that only anarchy follows. Section 12 A of the Indian Penal Code def ines the offence of sedition as follows: ³Sedition. Whoever by words, either spoken or wr itten, or by signs, or by visi ble representation, or otherwise, br ings or attempts to br ing into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with impr isonment for life, to which f ine may be added, or with impr isonment which may extend to three years, to which f ine may be added, or with f ine´. But Explanation says ³Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this [2 ] section´. In Kedar Nath v. State of Bihar (AIR 19 2 SC 9 ), the cour t upheld the constitutional validity of the Section 12 A of I.P.C and also upheld the view taken in Niharendu¶s case.
[edit] Bi liography
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Callamard, Dr. Agnes, Freedom of Speech and Offence : Why Blasphemy Laws Are not the Appropr iate R esponse, (18 June 2006), www.google.com (as a pdf) Cohen, Henry, C.R .S. R epor t for Congress: Freedom of Speech and Press: Exceptions to the First Amendment, (27 August 200 ), www.google.com ( as a pdf ). Liang, Lawrence, R easonable R estr ictions and Unreasonable Speech, (200 ), www.google.com ( as a pdf ). Pandey, J. N., Constitutional Law of India, 2nd ed. (200 ), Central Law Agency, Allahabad. Singh, M. P., Constitution of India, 10th ed. (2001), Eastern Book Co., Lko. Tiwar i, Dr. Mahendra, Freedom of press in India: Constitutional Perspectives, (2006), www.supremecour tcases.com.
[edit] R eferences 1. 2. . . . 6. 7. 8. 9. 10. 11. 12. 1 . 1 . 1 . 16. 17. 18. 19. 20. 21.
^ Constitution of India-Par t III Ar ticle 19 Fundamental Rights. ^ AIR 1978 SC 97. ^ AIR 191 PC 116, 117. ^ a b c R omesh Thapar v. State of Madras, AIR 19 0 SC 12 . ^ Union of India v. Assn. for Democratic R eforms,(2002) SCC 29 . ^ Indian Express v. Union of India,(198 ) 1 SCC 6 1. ^ M.S.M. Sharma v. Sr i Kr ishna Sinha, AIR 19 9 SC 9 . ^ Sakal Papers Ltd. v. Union of India, AIR 1962 SC 0 . ^ AIR 197 SC 106; (1972) 2 SCC 788. ^ Virendra v. State of Pun jab, AIR 19 7 SC 896; Express Newspapers v. Union o f Ind ia, AIR 19 8SC 78, 617. ^ See Dr. Mahendra Tiwar i ³Freedom of press in India : Constitutional Perspectives´ available on internet. ^ Bijoe Emmanuel v. State of Kerala, (1986) SCC 61 . ^ State of Bihar v. Shailabala Devi, AIR 19 2 SC 29. ^ Om Prakash v. Emperor , AIR 19 8 Nag, 199. ^ Ra j Bahadur Gond v. State o f Hyderabad , AIR 19 Hyd 277. ^ Ram jil al Mod i v. State o f Uttar Pradesh, AIR 19 7 SC 622; 19 7 SCR 860. ^ Babulal Parate v. State of Maharashtra, AIR 1961 SC 88 . ^ LR QB 60. ^ Wor ldwide press freedom index 2007 R epor ters Without Borders ^ "The Prevention of Terror ism Act 2002". htt p://www.sat p.org/sat porgt p/countr ies/india/document/actandordinances/POTA.htm. ^ Kalhan, Anil et al. (2006). C ol oni
