Constitutional Foundation of Media Freedom

1
Constitutional Foundation of Media Freedom

• Dr. Madabhushi Sridhar
• NALSAR University of Law, Hyderabad.

2
Democratic Right

• Freedom of press is part of freedom of speech and
  expression as available to every citizen, under
  Constitutional proclamation and protection
• Preamble mentions Liberty of thought,
  expression, belief, faith and worship
• Freedom of expression is practical application of
  individual freedom of thought

3
Collective Right

• Freedom of thought is personal, freedom of
  expression is collective, which becomes more and
  more expressive with new months of their
  diffusion
• Life, liberty and pursuit of happiness are three
  important objectives of law, democracy and social
  life. It was part of Declaration of American
  Independence.

4
Constitutional Right

• It is a right guaranteed by Const. placed under
  Part III as FR.
• It is not legal right, a law has not given thus,
  law cannot take it back.
• Even Constituional right can be withdrawn. But
  this right cannot be, because it is fundamental
  in democracy and part of basic structure of the
  Constitution.

5
Article 19

• 1) All citizens shall have the right
• a) to freedom of speech and expression
• b) to assemble peacefully and without arms
• c) to form associations or unions
• d) to move freely throughout the territory
• e) to reside and settle in any part of territory
• g) to practise any profession, carry on any
  occupation, trade or business.

6
Restrictions

• (2) State can make law to impose reasonable
  restrictions in the interests of
• Sovereignty and integrity of India
• Security of State
• Friendly Relations with foreign States
• Public Order, Decency or morality,
• Contempt of Court, Defamation, Incitement to an
  offence.

7
Other Constitutions

• First and 14th Amendments to US Congress shall
  make no law...abridging the freedom of speech or
  press, religion, assembly, petition for redress
  of grievance
• Common Law of England
• Section 40(6)(1) of Const of Eire 1937
• Section 18(1)(e)(f)(g) Srilanka Const.1972
• Article 50 51 of USSR Const 1977
• Section 298 Government of India Act 1935

8
International Conventions

• Art. 13, 19, 20, 23, 29 of UDHR 1948
• Art 22 of International Covenant of Civil and
  Political Rights 1966
• Art. 11 of the European Convention on Human
  Rights, 1950
• Art 6,12 of International Covenant on Economic,
  Social and Cultural Rights, 1966

9
Meaning

• Article 10 of ECHR provides that Everyone has the
  right to freedom of expression. This right shall
  include
• freedom to hold opinion and
• to receive and impart information and ideas
  without interference by the public authority
  regardless of the frontiers.

10
Amendments to Art 19

• First Amendment 1951
• Sixteenth Amendment 1963
• Forty-fourth Amendment, 1978
• Civil Liberties are Fundamental rights provided
  under Art 19, 21, and 22
• Deprivation of Personal Liberty is violation of
  Article 21 and 22.

11
Personal Liberty

• Art 19 deal with important attributes of personal
  liberty, life and personal liberty are sought to
  be protected under Art 21, which include
  varieties of rights.
• Other legal rights which may be on par with civil
  rights are right to strike, freedom of contract,
  right to franchise and right to contest for
  legislative election.

12
Citizens and persons

• Rights under Art 19(1) are basic and available
  only for citizens and not all persons, thus
  foreigners are excluded
• Citizen gets legal capacity to exercise the
  rights, entitled to enjoy. State is restricted to
  exercise its authority in making law or taking
  any action curbing these freedoms unreasonably.

13
Meaning

• right to express ones own convictions and
  opinions freely without any interference from any
  authority or person
• Right to receive and express ideas and
  information and the secrecy of the private
  communication (Halsburys Laws of England)
• Usha Uthup v West Bengal. 1984

14
Purpose

• Helps an individual to attain self fulfillment
• Assists in the discovery of truth
• Strengthens capacity of an individual in
  participating in decision making process
• Provides mechanism by which it is possible to
  establish a reasonable balance between stability
  and social change.

15
Need of Democracy

• To take part in all matters of governing and all
  spheres of life
• Governed need to form a wise and intelligent
  judgment and create an enlightened public opinion
  
• Public discussion assumes the nature of public
  duty. In democracy it is not individual right but
  right of community to hear and informed.

16
Freedom of Media
is not higher than ordinary citizen guarantees
absence of interference independent editorial
authority contents of newspaper are left to
choice of editor. FoP does not exist where Govt
dictates its views to newspapers. Freedom lies
both in content, circulation equitable
distribution of newsprint.
17
Public Discussion

• Himmatlal K Shah v Commissioner of Police, 1973
  SC case Bombay Police Act 1951 is challenged.
  Refusal to hold public meeting in public park
  held against Art 19. Public processions are
  prima facie legal.
• F of Expression and assembly are essential
  elements of democratic system. Right to meet face
  to face with others for discussion

18
Bandh Expression Right

• Bandh is expression of protest, but forced
  enforcement bandh is violation of others right
  or expression and business.
• CPM v.UoI AIR1998 SC 184, Bandh or Hartal violate
  the Art. 19. FRs of citizens as a whole cannot
  be subservient to the claim of FR of an
  individual.

19
Express Case 1986

• Notice of re-entry upon forfeiture of lease and
  threatened demolition of building- Held to be
  threat to silence the press, violation of
  19(1)(a) 14.
• Right to Reply LIC v Manubhai D Shah, Yogakshema,
  1986 SC 515, right to propagate ones view and to
  answer criticism leveled against his view.

20
Beyond Genocide

• A trust produced documentary on Bhopal, which won
  Golden Lotus, DD refused to telecast, as it
  contains criticism of Govt. Not valid under
  19(1)(a) Film maker has a FR to exhibit his film,
  onus lies on party which claims that it was
  entitled to refuse under 19(2). Any attempt to
  stifle, suffocate or gag this right would sound a
  death knell to democracy.

21
Maneka Gandhi

• No geographical limitation on FoS, it carries
  with it right to gather information as also to
  speak and express oneself at home and abroad and
  to exchange ideas with others not only in India
  but also outside. If the direct or indirect
  consequence of canceling passport is to abridge
  FoS, not valid. But to travel abroad cannot be
  claimed as an integral right of FoS. 1978

22
National Anthem Case

• 1986 3 SCC 615 Right of Jehova Witnesses not to
  take part in singing NAnthem is not insult and
  part of FoSE. Circular of Director public
  instruction held violation of 19(1)(a)
• Romesh Thapper, Cross roads case, Brijbhushan
  Organiser Limiting FoSE to prevent prejudicial
  activity not valid. Public Order is added as
  ground for restrictions.

23
Newspapers Price Page Act

• Daily Newspaper Price and Page Order 1960, fixing
  minimum number of pages, ad news ratio. It will
  affect circulation so violative of Art 19. Sakal
  Papers Pvt Limited v UoI 1962 SC 305
• Bennet Coleman v UoI 1973 SC 106 Paper was asked
  to reduce the space for ads. Held not valid.

24
Advertisements 19(1)(a)

• Right to Govt Ads equitable distribution of ad
  revenue as per norms. Art 14
• Govt cannot deny Ads because it was criticised-
  Art 19. Dainik Samband v State of Tripura, 1989,
  Ushodaya, 1981, Gulam Nabi v JK 1990
• Mian Bashir v Jammu Kashmir 1982, JK26.
  Privileges of rights under 105

25
Restriction on Ads

• Ads to promote drugs can be restricted- Hamdard
  Dawakhana v UoI 1960 SC 554
• Ad involves commercial element, thus to be guided
  by noble restrictions. All ads does not relate to
  FoS E of ideas.
• Yellow Pages Case, 1995 (5) SCC 139 commercial
  ad is also part of FoSE, no exclusive right to
  publish Tele directory.

26
Electronic Media

• Honi Anhoni, was restrained as it spreads false
  beliefs superstition. No material to show that
  serial was prejudicial, not valid. Odyssy
  Communications case1988 SC 1642
• Restrictions on Tamas Not valid Romesh v UOI
  1988 SC 775
• Hero Cup Case Govt has no monopoly of airwaves.
  Right to telecast imp event. 1995 (2) SCC 161

27
Films

• Censorship justified in KAAbbas v UoI 1971 SC
  481. Classifying as A and U valid
• Bandit Queen case, Bobby Art International v Om
  Pal Singh Hoon Case, 1996(4) SCC1 Issuance of A
  certificate was held valid. Film has to be judged
  in its entirety. Nude scenes, arousing a sense of
  revulsion against perpetrators and pity for
  victim permitted.

28
Reasonable Restrictions

• Security of State- serious and aggravated form of
  public disorder. Speeches and expressions which
  encourage violent crimes are considered to be
  related to security of state
• Public Order- state of tranquility which prevails
  amongst the members of society as a result of
  internal regulations enforced.

29
Public disorder

• Section 124 A of IPCSC held that the activity
  would be rendered penal when it is intended to
  create disorder (State of Bihar v Shailabala 1952
  SC 329) Not mere criticism of Govt action.
  Official Secrets Act is in force in the name of
  security of state.
• Incitement to offence, insult to religion,
  Section 144 CrPC Babulal Parate 1971 SC

30
Contempt of Court

• CoC Act 1973, Section 228 IPC makes CoC
  punishable. Art 129 empowers SC to administer CoC
  powers. Reasonable Restriction over 19(1)(a).
• Friendly Relations with Foreign States- for
  protection Not through executive or departmental
  instructions, only by legislative restrictions.

31
Defamation

• Right to Reputation as read into Art 21.
• Section 499 500 IPC
• Decency Morality no writing should deprave
  morals of youth, no expression should promote
  indecent ideas and activities. Hicklin Test
  Ranjit Udeshi, Section 292 of IPC obscene Lady
  Chatterleys Lover SC upheld conviction.

32
Privacy

• Most invaluable human right, right to be let
  alone to protect ones inviolable personality
  Intrusion of privacy threatens liberty, it is an
  offence to personal dignity, outraging the
  modesty of a woman 324 IPC. Insult to modesty 505
  IPC.
• Autoshankar Case Rajgopalan v TN1995 SC 264,
  autobiography of condemned man

33
Telephone Taping

• PUCL v UoI 1997 SC 568 there should be just and
  reasonable procedure for regulating the exercise
  of power under Indian Telegraph Act 1885 Section
  5(2), to safeguard rights of people under 21 and
  19
• Tapping violates 19 if fair procedure is not
  adopted. It may be violation of privacy also.

34
Interview of prisoners

• Press can interview prisoners, but require to
  seek consent of prisoner and permission from
  authorities as per Jail Manual (Smt Prabha 1982
  SC 6) For interview of under-trial prisoner,
  court has to permit, journalist has to do it as
  per the restrictions and regulations as per jail
  manual
• Press has no unfettered right to interview.
  (Charulata Joshi, 1999 SC 1379)

35
Section 295 A of IPC

• Deliberate and malicious insult or attempt to
  insult or to outraging the religious feelings,
  disrupt the public order, to punish it under 295
  is valid under 19(2) (Ramjilal Modi v State UP
  1957 SC 620)
• Promotion of disharmony or ill will between two
  groups 153A IPC, religious appeal with
  prejudicial effect-offence u/s 123(3A) RPA

36
Babulal v Maha 1961 SC 884

• Prohibitive orders can be given by DM u/s 144, to
  prevent disorders, obstruction and annoyance and
  the Magistrate has to act judicially, the orders
  are temporary in nature to meet emergency
  situations.DM could be the judge of situation.
• Life of this order cannot be extended beyond 2
  months, if so, it is unconstitutional

37
Liberty is not licence to anarchy

• Justice Jackson it is not choice between order
  and liberty, but it is between liberty with order
  and anarchy without either.
• He pleaded for little practical wisdom in
  extending doctrine of clear and present danger
  test, if not bill of rights convert into a
  suicide pact. (Teminiello v Chicago 337 US 1)

38
Flag case in US

• Minersville School Dist v Gobitis 310 US 586, US
  SC upheld the requirement of participation by the
  school students in flag saluting ceremony and
  Jehovah witnesses are not exempted from mandatory
  requirement on grounds of violating religious
  belief.
• Display of red flag as protest is protected
  (Stromberg v California 283 US 359)

39
Burning Flag

• Street v New York 1969 US, street burned 48 star
  flag of US uttering some contemptuous words
  against flag as a protest against killing of
  James Meredith in Mississipi. SC reversed
  conviction of Street for words. Though punished
  for burning, his words are protected.
• Thornhill v Alabama,1940 310 US 88 peaceful
  picketing is Constitutional.

40
First Amendment

• After Crossroads (affecting public order)
  Organiser(disturbing friendly neighbours), In re
  Bharati Press (writing inciting an offence)
  cases, first amendment was brought in 1951 to
  include three grounds
• 1) public order,
• 2)friendly relations with foreign countries
• 3) incitement to an offence

41
Preventive Injunction

• Reliance Petrochemical Ltd v Indian Express 1989
  SC 190 WPs filed challenging Secured Convertible
  Debentures of RP, SC allowed issue to be
  proceeded with. Interim injunction against
  Express from writing against, E moved for
  vacation, court has to balance free press and
  fair trial. (CJ Sabyasachi said right to know is
  essential under Art 21)

42
Press v Parliament

• MSM Sharma v Sri Krishna Sinha 1959 SC 395.
  Parliament can prohibit publication of any report
  in press. 19 is subject to 194(3)
• In re Special Reference1965 SC 745 Kehar sing
  punished by speaker for pamphlet distribution in
  assembly. Filed WP. LA ordered arrest of judges,
  advocate and K, 28 JJ stayed it. LA ordered JJ to
  appear.

43
Reporting Legislature

• Parliamentary Proceedings (Protection of
  Publications) Act, 1956, It was repealed in
  Emergency.
• Article 361A added in 1978 to protect publication
  of proceedings if substantially true, without
  malice. Immunity from court proceedings also
  extend to media, electronic and news agency also.
  Applicable to Legislative reporting also. Secret
  session cannot be reported.

44
TV Indira Jaising

• Indira Jaising v UoI 1989 Bom 28 Petitioner was
  interviewed on Muslim Women (Right to Protection
  on Divorce) Bill, but was not telecast. Held-
  Violation of 19.
• Universal Communication System Case, 1995 AlHC
  6398 Hindalco 1966 all 199 entertainment tax
  levied on Cable TV Network, valid.

45
Right to Use Loudspeaker

• K. Venu v DGP 1990 Ker 344 There is no
  fundamental right to use loudspeaker. Sound
  pollution and indiscriminate use can be
  regulated. Venu was denied mandamus.
• DA Prabhu v State of Ker1975 Ker 117 total
  restriction on use of loudspeaker is against 19.

46
Compelled Speech

• (Motion Picture Association 1999 SC 2324)
  Direction to exhibit news current events does not
  violate 19.
• Statutory obligation that any food product must
  carry on its package list of ingredients used in
  its preparation, weight, mrp etc, obligation to
  publish statutory warning on cigarette -valid.