In Bridges v. California1, FRANKFURTER J.

in his dissenting judgement said, ‘Freedom of speech and

of the press are essential to the enlightenment of the free people and in restraining those who wield
power.’

The purpose of the press is to advance the public interest by publishing facts and opinions without
which a democratic country cannot make responsible judgements.2

Since, in India, freedom of ‘expression’ is guaranteed by 19(1)(a) of the Constitution, and it has been
held by our Supreme Court3 that freedom of ‘press’ is included in that wider guarantee, it is
unnecessary to plead for the freedom of the Press in this country.

It is a ‘basic’ human right;4 and has also been called a ‘preferred’ right.5

In the words of Blackstone6

“The liberty of the press is indeed essential to the nature of a free State… the only plausible
argument heretofore used for restraining the just freedom of the press, “that it was necessary to
prevent the daily abuse of it”, will entirely lose its force, when it is shown… that the press cannot be
abused to any bad purpose without incurring a suitable punishment: whereas it never can be used to
any good one, when under the control of an inspector.”

In Rajgopal,7 the question was how far the press could criticise and comment on the acts and
conduct of public officials. The Supreme Court felt that freedom of the press extends to engaging in
uninhibited debate about the involvement of public figures in public issues and events.

It has already been explained that freedom of the Press implies that the choice of what is to be
printed in the editorial or news-columns of a newspaper should rest with the judgement of its
editor8 and not the Government or any public official9. The reason is patent, namely that freedom of
expression cannot be said to exist where the Government dictates what views or information should
be published the media of expression.10

Such indirect interference with the freedom of the Press may be made also by securing the dismissal
or discharge of an Editor whose writings were not wholesome to the authorities. In such a case, the
Press Council should have the jurisdiction to inquire into the motive behind such dismissal, even
though, ordinarily, service conditions of employees would not be within the province of a Press
Council.11

Since freedom of expression includes the freedom to propagate one’s own views as well as of
others,12 it follows that the freedom of the Press includes the right.

1
314 US 252 @ 284
2
Indian Express Newspapers(Bombay) (P) Ltd. V. Union of India, AIR 1985, SC 515
3
Express Newspapers v. Union of India, AIR 1958 SC 578 (614)
4
Life Insurance Corporation v. Manubhai, AIR 1993 SC 171(Para 5)
5
Odyssey v. Lokvidyayan, AIR 1988 SC 1642.
6
(1765) IV Bl. Com., pp. 151-53.
7
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
8
Attorney General v. Times Newspapers Ltd.; Sub nom Attorney General v. Lapard, (2001) EWCA Civ 97.
9
Miami Herald v. Tornillo (1974) 418 US 241; Rosenblatt v. Baer, (1966) 383 US 75 (86).
10
Ibid.
11
Re. Hindustan Times (Delhi High Court)
12
Express Newspapers v. Union of India, AIR 1958 SC 578
Such views or opinions may be those of the editor or author but also those of other people,13 printed
under his direction.14

The freedom extends to the discussion and publication of views relating to ‘all issues about which
information is needed to enable the members of society to cope with the exigencies of the period’,15
and is not necessarily confined to ‘political’ or ‘public’ affairs.16

Article 19(1)(a) applies to citizens only and so a non-citizen running a news- paper cannot seek the
guarantee of the constitutional provision.

Freedom of speech is the bulwark of democratic government, which is essential for proper
functioning of the democratic process.

In State of Uttar Pradesh v. Raj Narain17, the Supreme Court held that Article 19(1)(a) not only
guarantees freedom of speech and expression, it also ensures and comprehends the right of the
citizens to know the right to receive information regarding matters of public concern.

In Secretary, Ministry of Information and Broadcasting v. Cricket Association18, the Supreme Court
reiterated the proposition that the freedom of speech and expression guaranteed by Article 19(1)(a)
includes the right to acquire information and to disseminate the same.

The freedom of the press is, therefore, a necessary concomitant of the freedom of expression which
involves a right to receive and impart information, without which democracy becomes an empty
slogan.19

The prime purpose of the free press guarantee is regarded as creating a fourth institution outside
the Government on additional check on the three official branches- executive, legislative and
judiciary.20

While considering Article 10 of the European Conventions on Human Rights in support of the
proposition that the press should be seen as the “eyes and ears” of the public when matters of
political controversy are in issue, it was observed, “it is incumbent on the press to impart
information and ideas, the public have also a right to receive them”.21

Censorship of press is not specifically prohibited by any provision of the Constitution of India. Like
other restrictions, its constitutionality has to be judged by the test of ‘reasonableness’ within the
meaning of Clause (2) to Article 19.22

The censor has to balance the literacy, artistic, sociological and ethical merit of a picture with its
tendency to deprave and corrupt.23 And it must be responsive to social change and must go with the
current climate.24

13
Express Newspapers v. Union of India, AIR 1958 SC 578
14
Sharma v. Srikrishna, AIR 1959 SC 395 (402).
15
Thornhill v. Alabama, (1950) 310 US 88 (102); Time, Inc. v. Hill, (1967) 385 US 374 (388).
16
Ibid.
17
State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865, p 884 : (1975) 4 SCC 428
18
AIR 1995 SC 1236.
19
Article 19 of the International covenant on Civil and Political Rights.
20
New York Times v. Sulliyan, 376 US 254; New York Company v. United States, (1971) 403 US 713.
21
De Haes and Gripach v. Belgium, (1977) 25 EHRR, para 39.
22
Virendra v. State of Punjab, AIR 1958 SC 896; Babulal v. State of Maharashtra, AIR 1961 SC 884.
23
Raj Kapoor v. Laymon, AIR 1980 SC 605 : (1980) 2 SCC 175.
24
Rangarajan v, Jagjivan Ram, (1989) 2 SCC 574: (1989) 2 SCR 204.
Public order

Article 19(2) does not use the words “national interest”, or “interest of Society” but several grounds
mentioned in Clause are ultimately referable to the “interest of the nation” and “interest of
Society”.25

The words “in the interests of” introduce the ‘tendency’ test for determining the validity of
restriction under Article 19. In this context the Supreme Court observed in Remjilal v. State of U.P.26
as under:

“A law may not have been designed to directly maintain public order and yet may have been
enacted in the interest of public order. If, therefore, certain activities have a tendency to cause
public disorders, a law penelising such activities as an offence cannot but be held to be a law
imposing reasonable restrictions in the interests of public order; although in some cases those
activities may actually lead to a breach of public order.”

Since freedom of the Press flows from the freedom of expression which is guaranteed to “all
citizens” by Art 19(1)(a), the Press stands on no hgher footing than any other citizen, and cannot
claim any privilege(unless conferred specifically by law), as such, as distinct from those of any
citizen.27

Since the guarantee under Art. 19(1)(a) is confined to ‘citizens’28, a non-citizen, running a Press, is
not entitled to the benefit of the liberty of the Press.29 In this aspect, the position of a Press run by a
foreigner or of a foreign journalist in India, may be under greater control than before Independence,
when there was no constitutional provision to reply upon,30 in favour of either a citizen or a non-
citizen.

It would follow from this that not only an alien, but also a company, even though incorporated in
India,31 would not be entitled to complain of any invasion of freedom of expression or of the Press,
because it has been held that ‘citizenship’ under our Constitution is confined to natural persons.32

It has, however, been held that though a company, not being a ‘citizen’, may not be entitled to a
fundamental right under Art. 19, and may not be entitled to apply for enforcement of such right
under Art.19, and may not be entitled to apply for enforcement of such right under Art. 32 or 226 of
the Constitution, the rights of its shareholders are necessarily affected where the rights of the
company are affected. Hence, where a newspaper company is incorporated in India, its Indian
shareholders, who are citizens of India, may challenge the constitutionality of a law or Government
order which infringes the freedom of expression of such Press or newspaper and such a proceeding
would not be thrown out merely because the company has been added as a co-petitioner.33

25
Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995
SC 1236 : (1995) 2 SCC 161.
26
Ramjilal v. State of U.P., AIR 1957 SC 620
27
Sharma v. Srikrishna, AIR 1959 SC 395
28
Cf. State of Gujarat v. Ambica Mills, AIR 1974 SC 1300.
29
Infra. 27
30
Ibid.
31
Tata Engineering Co. v. State of Bihar, AIR 1965 SC 40(48); Amritsar Municipality v. State of Punjab, AIR 1969
SC 1100 (1106).
32
Ibid.
33
Bennett Coleman v. Union of India, AIR 1973 SC 106; Gajanan Visheshwar Birjur v. Union of India, (1994) 5
SCC 550
Relief has thus been granted by the Supreme Court to several newspaper companies,34 indirectly.35

Conversely, it would not be constitutionally permissible in impose any restrictions specifically

levelled against the Press as an organ of freedom of expression, which could not be imposed on
other citizens,36 and further, when the Press is subjected to any restriction imposed by law, the
constitutionality of such restrictive law shall have to be judged by the same test of ‘reasonableness’
under Ar.19(2)37 which is applicable to all citizens.

The press is not only a medium of expression, but also a business.38

Once it is held that certain aspects f the freedom of the press can be drawn from Cl. (1)(g), apart
from Cl. 1(a) of Art. 19, it follows that additional restrictions can be imposed on the freedom of the
Press, under Cl. (6), in so far as the business aspects of the Press are concerned.39 Naturally, a
question of harmonisation of the dual operation of the two provisions in ART. 19, viz., under Cl.
(1)(a) and Cl. (1)(g), would further arise.

The Supreme Court under Art. 32 or a High Court(having territorial jurisdiction), under Art. 226 of
the Constitution. Thus,

The Printer, Publisher or Editor of a newspaper may bring a petition for appropriate relief to quash
an order which imposes a ban on the entry of their journal in a State or other local area.40

In such application under Art. 32 or 226, the petitioner may also challenge the constitutional validity
of the Act41 or the statutory rule under which the impugned order may have been issued, or even
the administrative policy,42 the implementation of which infringes the fundamental right of the
petitioners.

In the result, even when the freedom of expression of a particular journal is invaded by the State,
the corporation owning that journal cannot bring a proceeding under Art. 32 or 226, but only the
shareholders or office-bearers of the Press or a reader of the journal individually can; of course,
where any such individual citizen is a Petitioner, the fact that the company owning the Press is
joined in addition, will not vitiate the petition.43

It is, of course, not difficult for a company to bring a petition under Art. 32 or 226, with its Editor or
Publisher joining as co-petitioner. Hence, the net result of the Indian law as it stands, is that-

(a) Where the freedom of the Press has been violated, a corporation owning the Press can obtain
relief through its office-bearers, and the disability of the corporation itself is not only technical.

34
Sakal Papersv. Union of India, (1962) 3 SCR 842 (862). Cf. State of Gujarat v. Ambica Mills, AIR 1974 SC 1300;
Tata Engineering Co. v. State of Bihar, AIR 1965 SC 40(48); Amritsar Municipality v. State of Punjab, AIR 1969
SC 1100; Bennett Coleman v. Union of India, AIR 197 SC 106(115).
35
The Second Press Commission (Rep Vol I, para 14) has recommended that the freedom of expression should
be directly extended to Indian companies, apart from the rights of their shareholders.
36
Express Newspapers v. Union of India, (1959) SCR 12
37
Ibid.
38
Hamdard Dawakhana v. Union Of India, (1960) 2 SCR 671
39
Ibid.
40
Romesh Thappar v. State of Madras, (1950) SCR 594
41
Express Newspapers v. Union of India, (1959) SCR 12
42
Bennett Coleman v. Union of India, AIR 1973 SCR 106
43
Ibid.
(b) But it would not possible for a corporation, - which is not a Press under the Press and
Registration of Books Act, - as such, to claim any rights belonging to the Press or to spend its
corporate money for disseminating information of matters which are outside the purposes if its
incorporation, - purporting to exercise the freedom of expression guaranteed by Art. 19(1)(a) of the
Constitution.

NEED FOR LIMITATIONS ON FREEDOM OF PRESS

So far as war emergency is concerned, it is established that the State has the right to protect its own
existence from any publication which hinders the nation’s defence or the prosecution of war against
a national enemy.44

Press should be held to be in the public interest by enumerating those grounds in Cl. (2) of Art. 19,
and any expansion of these grounds can be legitimate only by way of interpreting these
constitutionally specified grounds.45 A restriction imposed on any ground outside Art. 19(2) shall be
an unconstitutional violation of the right guaranteed by Ar. 19(1)(a).46 The wider test if ‘public
interest’ may be a legitimate ground of restriction upon the professional or business aspect of
journalism and publication [Ar. 19(6)], but it would not uphold the restriction if it restricts the free
flow of ideas without being related to the particular grounds specified in Ar. 19(2).47 In any
democratic setup dissemination of news and views for popular consumption is a must and any
attempt to deny or restrict the same has to be frowned unless it falls within the mischief of Ar. 19(2)
of Constitution of India.48

To prevent a breach of the peace, S.144 of the Criminal Procedure Code, 1973, empowers a specified
Magistrate to issue a temporary prohibitory order against against a Press to abstain from publishing
any prejudicial matter, such as a matter inciting a communal riot,49 without previous scrutiny by the
Magistrate. This power would include the power to prohibit the entry of a prejudicial publication
within an area.50

Any publication which promotes or attempts to promote enmity, hatred or ill-will between different
sections of the people, thereby disturbing public tranquillity, is punishable under S. 153A, Indian
Penal Code.

44
Debs v. U.S., (1919) 249 US 211; U.S. v. O’Brien, (1968) 391 US 367.
45
Sakal Papers Case
46
L..I.C. v. Manubhai 1993
47
Sakal Papers
48
Infra 46
49
Babulal v. State of Maharashtra, AIR 1961 SC 884
50
Cf. Dange v. State of U.P., (1970) 3 SCC 218.
CONSTITUTIONAL LIMITATIONS ON THE FREEDOM OF PRESS IN INDIA

The restriction must be rationally or proximately connected with any of the grounds specified in Cl.
(2) or (6), as the case may be

Such restriction must be a ‘reasonable’ and must strike a balance between the freedom guaranteed
by any of the clauses under Art. 19(1) and the ‘social control’51 permitted by 19(2) & 19(6).

If either of these conditions is not satisfied, the Court would be entitled to strike down the restrictive
law as unconstitutional.52 Elaborating the tests of reasonableness,53 while finding out a direct nexus
between the restrictions and the object of any Act, Supreme Court of India has broadly laid down
following touchstones:

(a) The directive principles of State Policy.

(b) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement
of the interest of the general public.

(c) No abstract or general pattern or a fixed principle can be laid down so as to be of universal
application and the same will vary from case to case, as also with regard to the changing conditions,
values of human life, social philosophy of the constitution, prevailing conditions and the surrounding
circumstances.

(d) A just balance has to be struck between the restrictions imposed and the social control envisaged
by Article 19(b).

(e) Prevailing social values as also social needs which are intended to be satisfied by the restrictions.

(f) There must be a direct and proximate nexus or a reasonable connection between the restrictions
imposed and the object sought to be achieved.

Yet in another decision54 a somewhat new doctrine of ‘proportionality’ has been formulated by the
Court. Extending the concept of ‘reasonableness’ to that of ‘proportionality’ it has been held:

“Under the principle, the Court will see that the legislative and the administrative authority maintain
a proper balance between the adverse effects which the legislation or the administrative order may
have on the rights, liberties or interests of persons keeping in mind the purpose which they were
intended to serve….. whether the choices made infringes the rights excessively or not is so for the
Court to decide. That is what is meant by proportionality.”

In other words, in India, the scope for judicial review of a law which imposes a restriction upon the
freedom of the Press is derived from the foregoing provisions of the Constitution itself.

Ar. 19(1) does not prefer one freedom to another.55 A citizen is entitled to enjoy each and every one
of the freedoms specified therein [sub- Cls. (a) – (g) together, and the State cannot directly restrict
one freedom by placing an otherwise permissible restriction of another freedom.56

51
Krishnan Kakkanth v. Govt. of Kerala, (1997) 9 SCC 495
52
Cf. Bennett Coleman v. Union of India, AIR 1973 SC 106.
53
MRF Ltd. v. Inspector Kerala Govt. (1998) 8 SCC 227.
54
Omkar v. Union of India, (2001) 2 SCC 386.
55
Nevertheless, some preference has been shown to the freedom of the Press, as a ‘basic freedom’[Odyssey v.
Lokvidayan, AIR 1988 SC 1642
56
Sakal Papers
In order to solve the apparent anomaly, the Court has evolved the doctrine of ‘direct impact’ of the
distinction between the direct and incidental effects of a restriction upon a fundamental right,57
besides proportionality.58

Another doctrine which has been used in this context is that the ‘substance’ or ‘the character’59 of
the impugned legislation together with its history and the mischief which it is intended to suppress
should be examined to ‘determine whether it has violated a particular fundamental right.60

The grounds specified in Cls. (2) – (6) have been held to be exhaustive. Hence, where the direct
impact of a law restrictive of the Press is upon the aspect of freedom of expression, and the
restrictive law cannot rationally be shown to relate to any of these specified grounds, the law must
be held void.61

The State may impose restrictions on freedom of the Press in so far as it is necessary to protect itself
from external aggression, e.g., by prohibiting and punishing any publication which interferes with
the war efforts of the nation62 such as inciting resistance to the participation by the State in a war63
or to recruitment64 or conscription for the Defence Forces;65 undermining their morale;66 disclosing
war measures or movements which may help the enemy.67

The Civil Defence Act,1968 empowers the Central Government to take steps for prohibiting acts
prejudicial to the civil defence of India, which includes measures, not amounting to actual combat,
which are necessary for protection of any person, property, place or thing in India against any hostile
attack and such measures may be taken before, during, at or after the time of such attack.

In order to prohibit the publication of any matter in the Press which is prejudicial to civil defence,
the Central Government is empowered to make rules.

PUBLIC ORDER

It has been interpreted to mean ‘public safety and tranquility’ and absence of public disorders of a
local significance as distinguished from national upheaves such as revolution, civil strite, war which
would affect the security of the State.68

The concept of ‘public order’ must be distinguished from the popular concept of ‘law and order’ and
of ‘security of the State’. Law and order may not necessarily affect ‘Public order’69 and an activity
which may be prejudicial to ‘public order; may not necessarily affect ‘security of the State’.70
Absence of public order is an aggravated form of disturbance of public peace, which affects the

57
DD BASU, COMMENTARY ON CONSTITUTION OF INDIA
58
Omkumar v. Union of India, (2001) 2 SCC 386.
59
Hamdard Dawakhana
60
Ibid.
61
Supdt. v. Ram Manohar, AIR 1960 SC 633; Bennett Coleman v. Union of India, AIR 1973 SC 106.
62
Schenck v. U.S., (1919) 249 US 47(52)
63
Shaefer v. U.S., (1920) 251 US 466.
64
Gera v. U.S., (1950) 340 US 857; Frohwerk v. U.S., (1919) 249 US 204.
65
Debs v. U.S., (1919) 249 US 211.
66
U.S. v. Macintosh, (1931) 283 US 605.
67
Ibid.
68
Ghosh v. Joseph, AIR 1963 SC 812
69
Bhupal v. Arif, AIR 1974 SC 255
70
Ram Manohar v. State of Bihar, (1966) 1 SCR 709
general current of public life;71 and any act which merely affects the security of others may not
constitute a breach of ‘public order’.72

Offences against public safety would include- creating internal disorder,73 interference with the
supply or distribution of essential commodities or services;74 or to commit breach of discipline75 or
including public servants engaged in services essential to the life of the community to withhold their
services.76

(a) Even the intent of the writer would be immaterial if it is wholly ineffective or unintelligible or
nobody is likely to take it seriously.77 But not a demagogic writing addressed to the general public to
rise in revolution, couched in mystic or rhetorical language, though it may be punishable if
addressed to an excited mob.78

(b) For the same reason, the advocacy of a non- violent disobedience to the civil laws79 or of non-
payment of Government dues without resorting to violence,80 cannot be restricted on the gorund of
‘public order’ because the relation between such advocacy or incitement and the threat to public
peace and tranquillity is not proximate but problematic.81

71
Bhupal v. Arif, AIR 1974 SC 255
72
Madhu Limaye v. S.D.M., AUR 1971 SC 2486.
73
Brijbhusan v. State of Delhi, (1950) SCR 605
74
Cf. Dalbir Singh v. State of Punjab, AIR 1963 SC 1106
75
Ibid.
76
State v. Ramanand, AIR 1956 Pat 188.
77
State of Bihar v. Sailabala, (1952) SCR 654.
78
Ibid.
79
Supdt. v. Ram Manohar, AIR 1960 SC 633
80
Ibid.
81
Ibid.