Freedom of Expression in India - Constitutional Law

Constitutional Law

Main Article Fundamental Rights in India

In a landmark judgment of the case Maneka Gandhi v. Union of India, 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 abroad also.

The constitution of India does not specifically mention the freedom of press. Freedom of press is implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions that are provide under the Article 19(2) of the Constitution. Before Independence, there was no constitutional or statutory provision to protect the freedom of press. As observed by the Privy Council in Channing Arnold v. King Emperor: “The 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”. 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 expression under the Article 19 of the UDHR. The heart of the Article 19 says: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

In Romesh Thapar v. State of Madras, Patanjali Shastri, CJ observed: “ 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 possible.”

The Supreme Court observed in Union of India v. Assn. for Democratic Reforms: “Onesided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.

In Indian Express v. Union of India, it has been held that the press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements. They are:1. freedom of access to all sources of information, 2. freedom of publication, and 3. 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 of India, the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v. Union of India, the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down the plea of the Government that it would help small newspapers to grow.

In Romesh Thapar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC 124), entry and circulation of the English journal “Cross Road”, printed 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 “without liberty of circulation, publication would be of little value”. In Prabha Dutt v. Union of India ((1982) 1 SCC 1; AIR 1982 SC 6.), the Supreme Court directed the Superintendent of Tihar Jail to allow representatives of a few newspapers to interview Ranga 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 authority of the government, in such circumstances, has been under the scanner of judiciary. In the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the further orders, all communal matters all the matters and news and views about Pakistan, including photographs, and cartoons”, on the ground that it was a restriction on the liberty of the press. Similarly, prohibiting newspaper from publishing its own views or views of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.