Democracy and Freedom of Press in India
P.George Giri *
Freedom of expression has always been emphasized as an essential basis for the democratic functioning of a society. The reasons for this are: the right of an individual to self-fulfillment, which right requires the communication of thought; the importance of constantly attempting to attain the truth, an attempt which is frustrated if information is suppressed or comment blocked; the inherent democratic right to participate in decision-making, which obviously implies the freedom to obtain, communicate and discuss information,; and the practical importance of maintaining the precarious balance between healthy cleavage and the necessary consensus; "coercion of expression is likely to be ineffective (and)…. Conceals the real problems confronting a society… It is likely to result in neglect of the grievances which are the actual basis of the unrest and thus prevent their correction". Especially because we are compelled to operate our democracy indirectly, it is of great importance that the citizens should be enabled to know what is happening in different regions and different sectors of the functioning of the society, and to listen to different and alternative approaches and comments, so that they can effectively participate in the process of self-government. If facts cannot be freely presented and comments cannot be freely exchanged, there is no way in which the citizens can even attempt to hold the rulers to account.
A further dimension to the freedom of expression is added by the existence of mass society in which communication among citizens can take place only through the use of media like the Press and broadcasting and not directly, except in a limited way. With State monopoly over broadcasting which prevail both technical and, in the Indian context, financial, the importance of the Press is even more crucial.
Our actual experience since Independence, and especially in the last decade or so, also suggests that a free and vigilant Press is vital to restrain corruption and injustice at least to the extent that public opinion can be roused as a result of press investigations and comments. Recently a number of injustices and wrong-doings have been uncovered as a result of the initiative taken by newspapers. Whether it is the question of various types of bonded labour in different parts of the country, the misuse of powers by A. R. Antulay or the existence of smuggling rackets on the West Coast, newspapers have served a very useful purpose by exposing them. The fear that the Press will expose such wrong-doing is a major restraint on potential wrong-doers.
It has been frequently alleged, especially in India, that the freedom of the Press is in danger because of the ownership of the newspaper industry and the predominance of some newspaper groups and chains. It is also suggested that the editors and journalists cannot have adequate freedom of collecting and disseminating facts and offering comments as they are under the pressure of the capitalist owners. It is further pointed out that free collection and dissemination of facts is not possible in the case of newspapers which depend to a large extent on revenue from advertisements as the advertising interests cannot but influence the presentation of news and comments. Unless this whole structure of ownership and control in the newspaper industry, and also the manner of the economic management of the Press, is changed, it is therefore suggested, the Press cannot be really free.
The idea has merely to be put forward to see how suicidal such a solution can be. Cooperative ownership could be a possible alternative; but there are few examples anywhere in the world of successful cooperative management of large newspaper organisations, or of any large business establishments. A newspaper industry is an increasingly large, technically complex and managerially challenging industry. Unless we want the newspapers to be poorly produced as a result of continuous inefficiency in their management, we cannot but permit good and vigorous managers to control major units in this industry. The choice is between having good newspapers even with the shortfalls inevitably arising out of the inadequacies mentioned earlier, or having poor quality newspapers. What our choice will be is obvious.
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.
Cases related to it:
In the Printers (Mysore) Ltd v.Astt Commercial Tax Officer, The Supreme Court has held that no sales tax can be imposing on sale of newspaper in the country. However, the court clarified that this does not mean that press is safe either from taxation or from journal law relating to industrial relations or from the state regulation of the condition of service of its employees. The prohibition is upon the imposition of any restrictions to broadcast information and to the circulation of the newspapers.
A freedom of press has always been a cherished right on all democratic countries. The newspapers not only survey news but also ideas, opinion and ideologies, beside much else. They are suppose to guard public interest by bringing to fore the misdeeds, failings and lapses of the government and other bodies exercising governing power
The court held that the freedom of press stands at higher footing than other enterprises in this view, the test for determining the virus of a statute taxing news print have, therefore, to be different from the test usually to be adopted. The judges held that the newspapers are entitled to the benefit of the central sale tax 4% on purchase of raw material which they require for printing and publishing of newspapers.
Indian Express Newspapers v. Union of India, speaking about the utility of freedom of press the court observes:-
“The expression “freedom of the press” has not been issues in article 19 but it is comprehended within article 19(1)(a). The expression means freedom from interference from authority which would have the effect of the interference with the content nd the circulation of the newspapers and cannot be any interference with that freedom in the name of public interest. Freedom of press is the heart of social and political intercourse it is the primary duty of the courts to up hold the freedom of the press and in validate all laws or administrative actions with interfere with it contrary to the constitutional mandate.”
The question of validity of censorship came up for consideration in the case of Brij Bhushan v. State of Delhi. In that case the Chief Commissioner of Delhi, in pursuance of Section 7 of the East Punjab Safety Act, 1949 issued an order against the printer, publisher and the editor of an English Weekly of Delhi, called the Organizer, directing them to submit for analysis in duplicate before publication till further orders, all communal matters and news and views, about the Pakistan including the photographs and cartoons other than those derived from official source of supplied by the news agencies.
The Court struck down the order, observing that the press which is the essential part of the freedom of the speech and expression declared by Article 19(1)(a). Similarly, prohibiting newspaper from the publication of its own views or the views of the correspondence about the burning topic of the day is the serious encroachment on the valuable rights of the freedom of speech and expression.
In Express Newspapers v. Union of India. In this case the validity of the Working Journalist Act 1955 was challenged. This Act was enacted to regulate conditions of service of persons employed in newspaper industries. The Court held that Act is valid. It is said that press was not immune from laws of general application or ordinary forms of taxation or laws of industrial relations. The Act was passed to improve the service conditions of the women in the newspaper industry and therefore, impose reasonable restriction on the right guaranteed by Article 19(1)(a).
In Romesh Thapper v. State of Madras, a law banning entry and circulation of journal in a state was held to be invalid. The Court Held that 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 .A law which authorizes imposition of restrictions on grounds of ‘public safety or the ‘maintenance of public order’ falls outside the scope of the authorized restrictions under clause (2) and therefore void and unconstitutional.
In Sakal Papers Ltd v. Union of India the Daily Newspaper (Price and Control) Order, 1960, which fixed a minimum price and number of pages which a newspaper was entitled to publish was challenged as unconstitutional by the petitioner on the ground that it infringed the liberty of press. The petitioner was required to increase the price of their newspaper without increasing the pages. An increase in price without any increase in number of pages would reduce the volume of the circulation. On the other hand, any decrease in the number of pages would reduce the column, space for news, views, or ideas. The order therefore, acted as double-edged knife. It cuts circulation by a price rise or publication or dissemination of news, ideas and knowledge by restricting column space consequently to decrease in the number of pages. The State justify the law as a reasonable restriction on a business activity of a newspaper in the interest of the general Public. The Court struck down the order rejecting the State argument .It said that the right of freedom of speech and expression cannot be taken away with the object of placing the restrictions on the business activity of a citizen. Freedom of Speech can be only be restricted on the grounds mentioned in clause (2) of Article 19. It cannot, like the freedom to carry on business, be shortened in the interest of the general public.
In Bennet Colman and Co. v. Union Of India the validity of the News print Control Order which fixed the maximum number of pages ( 10 pages which a newspaper could published was challenged as a violative of fundamental rights guaranteed under Article 19 (1)(a) and Article 14 of the constitution. The Supreme Court rejected this contention and approved the “effect” test whether the “effect” of impugned law is to abridge a fundamental right, its object or subject matter will be irreverent.
In a historic judgment in R.Rajagopal v. State of TamilNadu the Supreme Court has held that the government has no authority in law to impose a prior – restrain upon publication of defamatory material against its officials. Public authorities who apprehend that they or their colleagues may be defamed could not prevent the press from publications of such material, could take action for damages after the publications of such material if they prove that the publication was based on false facts. The court held that no actions could be initiated against the press if the publications were based on public records including court records.
Freedom of the Press, the Court said, means absence of interference by the state accept in so far as it is authorized by the constitution and by laws.
The ruling was given by the court while allowing a writ petition by a Tamil Weekly Magazine “Nakheeran” seeking a direction to the TamilNadu Government from interfering with the publications of the autobiography of the condemned prisoners, Auto Shanker, in the magazine who had been charged and tried for as many as six murders. This mercy petition to the president of India was pending consideration. The petitioner was editor, printer and publisher of the magazine published from Madras. The second petitioner is the associate editor of the magazine. Their case is the condemned prisoner Auto Shanker who was convicted for six murders and sentenced to death had written his autobiography in jail and had handed over the same to his wife with the knowledge and approval of the jail authorities, for being delivered to his advocate with her request to publish it in the petitioner’s magazines. The autobiography depicted a close relationship between the prisoners and several IAS, IPS and other Officers, where indeed his partners in several crimes. The petitioner decided to commence the serial publications of the autobiography for this purpose they announce that very soon the magazine would be coming out with sensational life history of Auto Shanker. This announcement sent shocked waves among several police and prison officials who were afraid that their links with the condemned prisoners would be exposed they force Auto Shanker, by applying third degree methods, to write letters addressed to the inspector general of the prisoners and the editor of the magazine requesting that his life story should not be published in the magazine. On July 15th, 1994 informing him that the autobiography was false and Auto Shanker had denied he had written any such book and therefore ask him to stop the publications of serial.
The Division Bench of the Supreme Court consisting of Mr. Justice B.P.Jeevan Reedy and Mr. Justice Suhas C. Sen, has held that petitioner has right to publish the autobiography of Auto Shanker in so far as it appears from the public records even without his consent or authorization. But if they go beyond that and publish his life story they may be invading his right to privacy and will be liable for the consequences in accordance with law. The remedy of the affected officials, if any, is after the publications, the Court said.
On the issue of the citizen’s right to privacy, the Court held it is included in Article 21 of the Constitution and “A citizen has right to safe guard, the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.” None can publish anything concerning the above matters without the persons consent.
The Court made it clear that any publications containing the privacy aspects would become unobjectionable it is enough for the press to prove that he acted after a reasonable verification of the facts; It is not necessary for the press to prove that what is published that is true.
But in the interest of decency an exception has to be carried out to this rule, that is, the name of a female who has victim of sexual assault, kidnapping, abduction, or a like offence should not be published in the Press. The right of Privacy of public servants, however, stands on different footing. The Court ‘accordingly held that the petitioners were entitled to publish the autobiography of Auto Shanker as it appeared from public record’
The more time you spend in India, the more u realizes that the country is one of the world’s greatest wonders-a miracle with the message .And the message is democracy matters”. - Thomas Friedman.
To conclude the freedom of Press has to be protected no doubt but at the same time, the freedom of individual even in the press also to be protected, preserved any attempt to encroach the freedom of individual has to be prevented.
The ideal situation is that the press should have the self monitoring of their acts / behaviors while dealing with the freedom of individuals, which does not deal with any matter of the public interest.
* LL.M. (HNational Law University); Advocate, Supreme Court.