ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have

ever faced. Though this project has been presented by me but there are many

people who remained in veil, who gave their all support and helped me to

complete this project.

First of all, I am very grateful to my subject teacher PROF. SADAF FAHIM

without the kind support and help of whom the completion of the project was

a herculean task for me. She donated her valuable time from her busy schedule

to help me to complete this project and suggested me from where and how to

collect information and data.

I am very thankful to the librarian who provided me several books on this

topic which proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice

which was very useful and could not be ignored in writing the project. I want

to convey a most sincere thanks to my parents for helping me throughout the

project.

1
OBJECTIVE OF THE STUDY:
To study all the aspects of media law in India and the current scenario with emphasis to Indian
law. The problems associated with the same.

RESEARCH QUESTION
The general view of the researcher is to find that whether there are any limitations to the powers
of media.

RESEARCH METHODOLOGY:
The researcher has used doctrinal method in her research, that is, extensive use of literary
sources and materials. The researcher mainly uses secondary sources to provide substance to
the research analysis. In some cases, the researcher shall be bound to extract materials directly
from the literary work of certain authors which the researcher intends to adequately cite and
notify in due course of time.

SOURCE OF DATA:
The researcher will collect the data from the following sources:

Secondary Sources: Books

Websites
Articles

Limitations of the Study:

Though this is an immense project and pages can be written over the topic due to time, finance,
and territorial constraints the researcher has been compelled to deal with a limited number of
concepts only.

RESEARCH OBJECTIVES

1. To analyse the concept of freedom of press and its significance in India

2. To discuss the constitutional perspective of freedom of press in India and the reasonable
restrictions imposed in the light of landmark judgements
3. To determine the current scenario of freedom of press in India in view of recent incidents
and cases

2
4. To examine the constitutional provisions of freedom of press in U.S.A in comparison with
India
5. To recommend and suggest measures for ensuring Freedom of Press in India striking a
balance with the other fundamental rights guaranteed to the citizens

RESEARCH QUESTIONS

1. What is meant by freedom of press? What is its significance in India?

2. Whether the freedom of press is absolute under the Constitution of India? If not what are
the reasonable restrictions that are imposed on this freedom? What are the relevant case
laws with regard to it?
3. What is the role of press in the administration of justice? What are the recent cases wherein
media has played an effective role in advancing justice? What are the cases wherein media
has acted rather irresponsibly?
4. What are the constitutional provisions of freedom of press in U.S.A? How far the
provisions are different from that of India?
5. Why is there a need to strike a balance between freedom of press and other fundamental
rights guaranteed to the citizens?

Contents
RESEARCH QUESTION ..........................................................................................................2

RESEARCH METHODOLOGY:..............................................................................................2

SOURCE OF DATA:.................................................................................................................2

Limitations of the Study:............................................................................................................2

RESEARCH OBJECTIVES ......................................................................................................2

RESEARCH QUESTIONS........................................................................................................3

3
CHAPTER 1 ..............................................................................................................................7

FREEDOM OF PRESS AND ITS SIGNIFICANCE IN INDIA ...............................................7

FREEDOM OF PRESS: CONSTITUTIONAL PERSPECTIVE IN INDIA ............................8

Reasonable restrictions ..............................................................................................................9

a. Public Order and Security of State ...................................................................................9

d. Incitement to an offence .............................................................................................10

e. Friendly relations with foreign states .............................................................................10

f. Decency and morality .....................................................................................................10

g. Sovereignty and integrity of India .................................................................................11

Relevant case laws ...................................................................................................................11

1. Bennett Coleman & Co. & Ors v. Union Of India & Ors16 ..........................................11

2. Sakal Papers Ltd v. Union of India17 ............................................................................12

3. Ramesh Thapper v. State of Madras18 ..........................................................................12

18 AIR 1950 SC 124 ........................................................................................................12

4. Brij Bhushan v. State of Delhi 19 ...................................................................................12

21 1994( 6) SCC 632 .......................................................................................................13

7. Printers (Mysore) Ltd v. Assistant Commercial Tax Officer22 .....................................13

8. Virendra v. State of Punjab23 ........................................................................................14

CHAPTER 2 ............................................................................................................................15

ROLE OF PRESS IN THE ADMINISTRATION OF JUSTICE ............................................15

Current scenario of press and its achievements ...................................................................15

23 AIR 1957 SC 896 ........................................................................................................15

Press- the need to act in a more responsible manner ...........................................................16

CHAPTER 3 ............................................................................................................................18

COMPARISON WITH THE AMERICAN CONSTITUTION...............................................18

CHAPTER 4 ............................................................................................................................20

4
FREEDOM OF PRESS VIS-A-VIS FUNDAMENTAL RIGHTS: THE NEED TO STRIKE A
BALANCE ...............................................................................................................................20

Freedom of press and fair trial ............................................................................................20

Freedom of press and right to privacy/right to know ...........................................................21

CONCLUSION AND SUGGESTION ....................................................................................22

SUGGESTIONS ......................................................................................................................22

5
INTRODUCTION

Press is not just a medium to express once emotions, feelings and perspectives; but additionally
dependable and instrumental for building conclusions and perspectives on different themes of
territorial, national and global plan. The vital role of the media is its ability to mobilize the
thinking process of millions. The increased role of the media in the present globalized world
was aptly described by the Justice Hand of the United States Supreme Court who stated, "The
hand that rules the press, the radio, the screen and the far spread magazine, rules the country".

Freedom of the press is extremely important for the effective functioning of a democracy. Press
can be used as an important tool of liberty and progress only if is kept free of all restraints
except those that it voluntarily accepts as an earnest of its responsibility with regard to the
public. It is then that it can inform and educate the people along the right lines and breed
tolerance of thought and expression which again is an indicative feature of a democratic set-
up. It is believed that a vigilant public is the custodian of the freedom of press. But its
watchdogs are those who man it, and they have an even greater responsibility in preserving
that freedom.

Press is recognized as the fourth estate i.e. the press has to operate within the framework of
these statutes and constitutional provision to act in public and national interest. This is symbolic
of the fact that nobody is above law. When the Constitution guarantees freedom of speech and
expression to its citizens, it ensures that the freedom is not absolute. They shall always be
subjected to some reasonable restrictions. If the press or media exceeds its jurisdiction, the
courts come forward to ensure that violation of the fundamental rights by the media does not
go unchecked.

6
CHAPTER 1

FREEDOM OF PRESS AND ITS SIGNIFICANCE IN INDIA

"Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference, and impart information and ideas through any media
regardless of frontiers".1 Freedom of the press is the freedom to communicate and express
through mediums including various electronic media and published materials. It refers to the
right to print, publish, disseminate, circulate and distribute publications without any
interference from the state or any other public authority. Freedom of press is implicit in Article
19(1) (a) of the Constitution of India. However, this Freedom, like any other freedoms, is not
absolute and is subject to well known exceptions in the public interests. Press generally refers
to the newspaper industry. But in the modern era, besides newspapers, there are various forms
of news media that includes television, radio broadcasting and online news websites.

Freedom of press and media is recognized as an essential attribute of a parliamentary

democracy. “A free press is the mother of all liberties and of our progress under
liberty.”2Justice Jeevan Reddy and Justice B.N. Hansaria in the Printers (Mysore) Limited v.
State of Karnataka stated that “freedom of press has always been a cherished right in all
democratic countries. The democratic credentials of a State are judged today by the extent of
freedom the press enjoys in that state.”3 For the proper functioning of any democracy it is
important that citizens are kept informed about what is happening within the country. Press
and media serves as an agency of the people; bringing forward the real picture of the society.
Hence the freedom of press and media is a necessary pre-requisite in fulfilling the democratic
ideologies.

Besides, a free and vigilant press is vital to prevent corruption and injustice, at least to the
extent that public opinion can be aroused as a consequence of press investigations and
comments. In fact, the main purpose of the free press is to create a fourth institution outside

1
The United Nations 1948 Universal Declaration of Human Rights
2
Adlai Stevenson

3
A.I.R 1994 S.C 23

7
the government to serve as an additional check on the three organs of government namely
executive, legislative and judiciary.

FREEDOM OF PRESS: CONSTITUTIONAL PERSPECTIVE IN INDIA

Freedom of press is not expressly provided under the Constitution of India. It is implied from
the freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution of
India. In interpretation of this guaranteed right, Patanjali Shastri, J., in Romesh Thapper v. State
of Madras 4 , remarked 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. Indeed, without circulation the publication would be of little value.” Likewise,
interpreting the words “freedom of speech and expression” the Madras High Court observed
that “the term ‘freedom of speech and expression” would include the liberty to propagate not
only one’s own views but also the right to print matters which are not one’s own but have either
been borrowed from someone else or are printed under the direction of that person.” 5Hence
“liberty of press is an essential part of the right to freedom of speech and expression declared
by Article 19 (1) (a)”6

However being a right emanating from the freedom of speech and expression, the freedom of
press in India stands on an equivalent footing as that of a citizen. In other words, press enjoys
no privilege distinct from that guaranteed to a citizen. Like any other freedom, the freedom of
press is not absolute. It is subjected to reasonable restrictions as mentioned under Article 19(2).
Thus the guarantee of the above right would not affect the operation of any existing law, in so
far as it is related to, or prevent the state from making any law relating to libel, slander,
defamation, contempt of court or any matter which offended against the decency or morality
or which undermined the security of or which tended to overthrow the state.

4
1950 S.C.R 594 at 597
5
Srinivasa Bhat v. State of Madras, A.I.R. (1951) Madras 70 at 73

6
Brij Bhushan v. State of Delhi, 1950 S.C.R.605 at 608

8
Reasonable restrictions

Article 19 (2) allows the State to make laws with the object of imposing reasonable restrictions
on the exercise of the right conferred by Article 19 (1) (a) in the interest of:

a. Public Order and Security of State

If an act has tendency to cause public disorder it would be a valid ground under Article 19 (2)
to impose restrictions, even though it may not lead to breach of public order. Public order is a
state of tranquillity that prevails amongst the members of a political society as a result of the
internal regulations enforced by the Government which they have established.7And “security
of state” refers to a serious and aggravated form of public disorder. The speeches and
expressions which encourage violent crimes are related to security of State.8 b. Defamation

Defamation is an injury to the reputation of a person. Freedom of press is mostly related to

libel which is written defamatory statement. If a person’s reputation is harmed without
justifiable reason, he can be prosecuted for the criminal wrong of defamation. The law of
criminal defamation is contained in section 499 and 500 of Indian Penal Code. Supreme Court
in Philadelphia Newspapers, Inc. v. Hepps, held that private individuals suing for libel must
prove the statement was false if it involved a matter of public concern.9 c. Contempt of Court

While exercising the right of freedom of expression one should not commit contempt of court
or make any comment which could be contempt10. The newspapers and media channels have
right to publish reports on the proceedings of the court, subject to the orders of the court
resolving the dispute. If the court specifically orders not to publish a particular evidence of a
witness, that cannot b called as an invalid order. However, truth of criticism against curt by
media is available as a defence available to writer or press or media to the charge of contempt
of court.

7
Ramesh Thapper v State of Madras, AIR 1950 Sc 124

8
State of Bihar v ShailaBala, AIR SC329
9
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)

10
E.M.S Namboodiripad v. T.N. Nambiar, AIR 1970 SC 2015

9
 d. Incitement to an offence

If any words written or spoken incite the commission of violent crimes, which include attempts
to insult the religious beliefs of any class, reasonable restrictions can be imposed. Promotion
of disharmony among the classes also can be restricted on the same ground. In State of Bombay
v. Balsara 11 the Supreme Court upheld the validity of section 24(1) (b) of the Bombay
Prohibition Act, 1949. It provided that no person shall print or publish in any newspaper, news
sheet, book, leaflet or any other single or periodical publication or otherwise display or
distribute any advertisement or other matter which is calculated to encourage or incite any
individual or class of individuals or the public generally to coomit an offence under the Act.

e. Friendly relations with foreign states

This is another ground justifying the restriction on freedom of speech and expression. State
cannot however prevent all the criticism of foreign policy of the Government. The Covenant
on Freedom of Information and the Press prepared by the United Nations Conference at Geneva
provide for necessary legislative restrictions being placed with regard to the “systematic
diffusion of false and distorted reports which undermines the friendly relations between people
and states.”12

f. Decency and morality

In Regina v Hicklin13 the court adopted the test of obscenity, which is known as the Hicklin
test. The test of obscenity is to note whether the tendency of matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences. Freedom of
speech and expression can be reasonable restricted in case it hampers with the decency and
morality.

11
1951 AIR 318
12
Art. 2 (j) of the Covenant on Freedom of Information and the Press

13
[1968] 3 QB 360

10
 g. Sovereignty and integrity of India

This ground was added subsequently in 1963 by the Constitution (Sixteenth Amendment). This
is provision is aimed at prohibiting anyone from making the statements that challenge the
integrity and sovereignty of India.

In Rajendra Sail v. M.P High Court Bar Assn1415, the editor, printer publisher and reporter of a
newspaper, along with the petitioner who was a labour union activist, were summarily punished
with a six months imprisonment by the High Court. Their fault was that they published
derogatory remarks against the judges of a High Court. The Supreme Court held it to be
contempt of court. In D.C Saxena v. Chief Justice of India15, the Supreme Court held that no
one has the power to accuse a judge of his misbehaviour, partiality or incapacity. The purpose
of such protection is to ensure independence of judiciary.

Thus the state has general power to impose reasonable restrictions. Also it must be noted that
these restrictions should not be arbitrary and excessive. There should be a balance between the
freedom guaranteed and the community interest protection.

Relevant case laws

1. Bennett Coleman & Co. & Ors v. Union Of India & Ors16

In this case the petitioners challenged the Newsprint Order (1962) and the Newsprint Policy
(1972). The Newsprint Order placed certain restrictions upon the import of newsprint
(complementarily, publishing newspapers in material other than newsprint was prohibited);
while the Newsprint Policy prohibited common ownership units from starting new newspapers,
limited the maximum number of pages to ten, and allowed a twenty percent increase in page
level to newspapers that had less than ten pages. The Supreme Court rejected this contention
and found the provisions of the Order to be in violation of Article 19(1) (a) of the Constitution
of India. The Court also struck down the rebuttal of the Government that it would help small
newspapers to grow.

14
[2005] INSC 272 (21 April 2005)

15
SCC (7) 216

11
2. Sakal Papers Ltd v. Union of India17

In this case, 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 by the
petitioner on the ground that it infringes the freedom of press. The petitioner had to increase
the price of their newspaper without increasing the pages. It was seen that an increase in price
without any increase in number of pages would reduce the volume of circulation. On the other
hand, any reduction in the number of pages would lessen the space of the column, space for
news, views or ideas. The State justified the law as a reasonable restriction on a business
activity of a newspaper in the interest of the general public. However the court struck down the
order rejecting the argument of the State and held that right of freedom of speech and
expression cannot be taken away placing the restrictions on the business activity of a citizen.

3. Ramesh Thapper v. State of Madras18

In the instant case, a law formulated by the Government of Madras in banning the entry and
circulation of an English journal "Cross Road", printed and published in Bombay within its
state was challenged by the petitioner. The Court held that freedom of speech and expression
includes freedom of propagation of ideas, and this freedom is ensured by the freedom of

16 1973 AIR 106

17 1962 AIR 305

18 AIR 1950 SC 124

circulation .A law which imposes restrictions on grounds of ‘public safety or the ‘maintenance
of public order’ falls outside the scope of the authorized restrictions under clause (2) and is
therefore void and unconstitutional.

4. Brij Bhushan v. State of Delhi 19

In this case, the Chief Commissioner of Delhi issued an order under Section 7 of the East
Punjab Safety Act, 1949, which required the editor, printer and publisher of a English weekly
of Delhi to submit it for scrutiny all communal matters, news and views, about the Pakistan
include ing the photographs and cartoons other than those derived from official source of
supplied by the news agencies. The court struck down the order and held that pre-censorship

12
of a journal is a restriction on the liberty of press. The court further laid down that prohibiting
a newspaper from publishing its own views was nothing but a serious encroachment on the
freedom of speech and expression.

5. Express Newspapers v. Union of India20

In this case the validity of the Working Journalist Act 1955 which was enacted to regulate
conditions of service of persons employed in newspaper industries was challenged. The court
held that press was not immune from laws of general application or ordinary forms of taxation
or laws of industrial relations .Since the Act was passed to improve the service conditions of
the women in the newspaper industry, it was found to be valid.

6. R.Rajagopal v. State of Tamil Nadu21

The Supreme Court 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 by the publication of any material cannot prevent
from exercising their freedom. The court was of the opinion that if the matter in the publication
was based on false facts on in any manner injurious, the concerned persons could take action
for damages after the publications. However no action could be taken prior to the publication.

19 AIR 1950 SC 129

20 AIR 1958 SC 578

21 1994( 6) SCC 632

Court further held that the right to privacy and right of freedom of press have to be balanced.
If publication of truth is in public interest it would not amount to defamation. On the other
hand, if it has got nothing to do with public interest and relates to privacy of an individual, then
it would certainly be defamatory. In the instant case, the petitioners were entitled to publish the
autobiography by Auto Shankar as it appeared from public records.

7. Printers (Mysore) Ltd v. Assistant Commercial Tax Officer22

In the instant case, the Supreme Court held that no sales tax could be imposed on the sale of
newspapers in the country. However the court clarified that this does not mean that press shall

13
be immune either from taxation or from general law relating to industrial relations or from the
State regulation of services of its employees. The prohibition is applicable only on the
imposition of any restriction to disseminate information and to the circulation of the newspaper.

8. Virendra v. State of Punjab23

In the this case, in respect of a publisher being prohibited to publish his view the Supreme
Court observed that it is certainly a serious encroachment on the valuable and cherished right
to freedom of speech, if a newspaper is prevented from publishing its own view or the view of
its correspondents.

14
CHAPTER 2

ROLE OF PRESS IN THE ADMINISTRATION OF JUSTICE

Current scenario of press and its achievements

As discussed, press is regarded as one of the pillars of democracy as it continues to act as a

watchdog of the three organs of democracy. In the present day, role of press in the
administration of justice has gained significant proportions. The sting operations carried out
against public servants by media houses are gaining popularity. Medias are justified in carrying
out deliberate operations, as this is probably the only way the defaulters can be caught red
handed. It helps the investigating authorities to bring out the truth in unrevealed cases.

22 1994 SCC (2) 434

23 AIR 1957 SC 896

Some of the famous cases that would have gone unpunished but for the intervention of media
includes the Jessica Lal case, the Priyadarshini Mattoo case, Nithesh Katara case, Aarushi
murder case and the Bijal joshi rape case. In all these cases the courts have appreciated the
investigative journalism of media.

In State v.Siddharth Vashisth & Manu Sharma16popularly called as the Jessica Lal murder case,
following an intense media and public pressure, the prosecution appealed and the Delhi High
Court conducted proceedings on a fast track with daily hearings. The trial court judgment was
overturned, and Manu Sharma was found guilty of having murdered Lal. He was sentenced to
life imprisonment on 20 December 2006.

Similarly in State (Through CBI) v. Santhosh Kumar Singh 17 ,popularly called as the
Priyadarshini Mattoo case, the intense media spotlight led to an accelerated trial,
unprecedented in the tangled Indian court system. The case is one of several in India that
highlight the ineffectiveness of traditional criminal law system, especially when it comes to

16
2001 IIAD Delhi 829,2001 Cri LJ 2404,90(2001)DLT 548

17
2007 Cri LJ 964,133(2006)DLT 393

15
high profile perpetrators. The acquittal of Santosh Singh in the case in 1999 had led to a
massive public outcry and the investigating agency CBI, under considerable pressure,
challenged the judgment in the Delhi High Court on February 29, 2000. Another case was that
of the Dr. Rajesh Talwar And Another v. Central Bureau Of Investigation18, known as the
Aarushi murder case. The high-profile Arushi/Hemraj twin murder case is a classic example
where media's effort was lauded as well as criticized. One of the victims was a student of an
elite school, her well-heeled doctor parents were the suspects. After Jessica Lal and
Priyadarshini mattoo case, this case was also under intense media scrutiny after the case was
marked with shoddy investigation. Vishal Yadav v. State of Delhi19 is another case in which the
media played a very important role in bringing the criminals before law.

Press- the need to act in a more responsible manner

Though the press has assumed critical parts for open welfare yet on occasion it has acted
recklessly. For example the electronic media built up the Abhi-Ash wedding in a manner that
other imperative news were dismissed. In Prof. Sabharwal's case, when Prof. Sabharwal was
executed by ABVP activists, there were various news channels & daily paper reporter were
available & they had proof of the homicide however the media acted unreliably & the police
called it an 'Open & Shut Case'.

Likewise, when Mumbai was under fear danger in 26/11 the media acted rather negligently by
telecasting live the long sixty hours Operation Black Tornedo by the security powers to battle
the assault at The Taj Hotel & Nariman House. It included live feed of air dropping NSG
Commandoes on the housetop of Nariman House. Similarly was the IPL issue wherein all sorts
of speculative stories revolved around the relationship between the Minister, Shashi Tharoor,
and Sunanda Pushkar in air and in print. The accent was on denigrating the character and
competence of the businesswoman. This kind of ‘investigative journalism' has nothing to do
with the truth-telling function of the news media. What it does is to prejudice the course of
public judgment and eventually justice. On occasion news channel covers news, for example,
'Bollywood Gossips' & 'Page 3' and so forth which has lessened them to a negligible
'Entertainment Channel'. There are numerous essential issues which ought to be secured by the
media however unfortunately it doesn't. In April 2009, Union Home Minister P.Chidambaram

18
2013 (82) ACC 303

19
116(2005)DLT 341,2005(79)DRJ 254

16
was tending to the media at a question and answer session a columnist tossed a shoe at the
minister on challenge of aquital of a Congress pioneer accused for driving AntiSikh riots in
1984. The reporter, Jarnal Singh was a journalist of Dainik Jagran, a local daily paper. Later
on he apologized to the Union Home pastor for his demonstration. This was a standout amongst
the most condemnable act which demonstrated the appalling side of the press.

17
CHAPTER 3

COMPARISON WITH THE AMERICAN CONSTITUTION

The United States has one of the world’s strongest systems of legal protection for freedom of
the press. The First Amendment of the U.S. Constitution provides the core guarantee of press
freedom and freedom of speech. It reads Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble and to petition the
government for a redress of grievance.20 Article 19(1) (a) finds its roots in the First Amendment
to the Constitution of the United States of America.

Unlike the Indian Constitution, the First Amendment to the American Constitution makes a
specific or separate provision for the freedom of press. Further, while the restriction on the
right to freedom of speech and expression are expressly spelt out in Article 19(2), this is not so
under the First Amendment. The US Supreme Court has read into the rights of the press certain
implicit restrictions which are, in principal, no different from Article 19(2). One such
restriction is the defamation law. The courts have given the press broad protection from libel
and defamation suits that involve commentary on public figures, though libel formally remains
a criminal offense in a number of states. In deciding New York Times Co. v. Sullivan21, The
Supreme Court held that when a publication involves a public figure, in order to support a suit
for libel, the plaintiff bears the burden of proving that the publisher acted with "actual malice,"

Under the American Constitution, the free press clause protects the rights of individuals to
express themselves through publication and dissemination of information, opinions and ideas
without the interference from the government. In Miami Herald Publishing Co. v. Tornillo22,
the Court unanimously struck down a state law requiring newspapers criticizing political
candidates to publish their responses. The state claimed that the law had been passed to ensure
press responsibility. Finding that only freedom, and not press responsibility, is mandated by
the First Amendment, the Supreme Court ruled that the government may not force newspapers

20
US Constitution , First Amendment , Article 1

21
376 U.S 254 (1964)

22
418 U.S 241

18
to publish that which they do not desire to publish. In Branzburg v. Hayes 23this right was
described as a fundamental right that is not merely confined to newspapers and periodicals. In
Lovell v. City of Griffin,24”press” was defined as “every sort of publication which affords a
vehicle of information and opinion. This right has been extended to include newspapers, books,
movies as well as video games. Similarly people who blog, Twitter or use other social media
are protected equally by the free speech and free press clause. In Obsidian Finance Group,
LLC. v. Cox, (2014) The United States Court of Appeals for the Ninth Circuit held that a
blogger is entitled to the same free speech protections as a traditional journalist and cannot be
liable for defamation unless the blogger acted negligently. As far as India is concerned, Section
66A of the Information Technology Act, 2000, had criminalized the publishing of any
information on Facebook, Twittter and other website that could be deemed to be "false, or was
for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will. However recently on 24 th March 2015, in
Shreya Singhal v. Union of India, the court struck down section 66A of the Information
Technology Act 2000 both in terms of “liberty of the individual” and from the point of view
of democratic governance.

Thus it can be concluded that for the most part, from a legal and social viewpoint the freedom
of the press in America is far more robust in comparison to the Indian guarantee.

23
408 US. 665

24
Lovell v. City of Griffin, 303 U.S. 444

19
CHAPTER 4

FREEDOM OF PRESS VIS-A-VIS FUNDAMENTAL RIGHTS: THE NEED TO

STRIKE A BALANCE

Human beings across the world have always strived to strike a balance between working and
resting, reporting and judging, befriending and avoiding, warmth and coldness, speech and
expression, joy and frustration and many intermingled aspects of daily and social life.
Likewise, in the modern era where television and internet sweeping information across the
world in a matter of seconds, the Supreme Court of India is attempting to strike a balance
between the media’s right to freedom of speech and expression and other fundamental rights
such as rights of the accused to a fair trial, protection of witnesses, public's right to know and
right to privacy

Freedom of press and fair trial

“The tension between the courts and the media revolves around two general concerns. The
first is that there should be no ‘trial by media'; and the second is that it is not for the press or
anyone else to ‘prejudge' a case. Justice demands that people should be tried by courts of law
and not be pilloried by the press.”25
Media trials put at risk the due process of administration. In Sushil Sharma v. The State (Delhi
Administration) and Ors34 it was held by the Delhi High Court that conviction, if any, would
be based not on media's report but what facts are placed on record. Similarly in A.G v. Times
News papers Ltd35 , Lord Denning stated that court would not allow “trial by news papers” or
“trial by television” or trial by any medium other than the court of law.”

Thus trial by media should not be encouraged. However press and media shall have the freedom
to express freely its views and opinion about the issue at hand. In many cases press has played
an active role in bringing an issue to the limelight and have thereby paved way to impart justice.
Thus effort must be placed so as to make sure that freedom of press does not result in trial by
media. It’s only then that a fair trial can be ensured to an accused under Article 21 of the
Constitution. Also, every person is presumed to be innocent till proved guilty in a court” and
no one “can be allowed to prejudge or prejudice his case by the time it goes to trial.”

25
Rajeev Dhavan, The Hindu, May 17, 2010

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Freedom of press and right to privacy/right to know

The problem with freedom of speech is that a free press and a person’s right to be informed
can occasionally infringe upon another person’s right to privacy. Public’s right to know does
not include the right to intimate the private details of one’s neighbours. Unless the information
can be proven to be of great public interest, there shall be no obligation to bring the matter
under public sensational stories. Where and when line of distinction is to be drawn between
the freedom of press and right to privacy has been an issue of debate. Most journalists defend
the public's right to know contending that detailed, accessible information results in a
constituency who better comprehends the legitimate procedure. Thus again efforts must be
placed to ensure that freedom of press does not encroach into the right to privacy of an
individual. Besides, Press has a duty to keep the public informed of all matters. Right to
information of the public must not be used in any manner so as to interfere with the privacy of
an individual. Therefore, all these rights are to be read in broad sense so that one does not
interfere with the other. In other words, court has to take utmost care to ensure that freedom/
right is guaranteed to the citizens under Part III of the Constitution are not in conflict with the
other.

34 1996 CriLJ 3944

35 (1973) 1 QB

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CONCLUSION AND SUGGESTION

Freedom of press is central to the survival of democracy. Democracy without the free
movement of the press is a misnomer. However, it has to be remembered that this freedom is
not absolute unlimited and unfettered at all times and in all circumstances as providing
unrestricted freedom of speech and expression would amount an uncontrolled license. All
freedoms are subjected to reasonable restrictions, the absence of which would lead to disorder
and anarchy. In the words of Mahatma Gandhi, “"The role of journalism should be service.
The Press is a great power, but just as an unchained torrent of water submerges the whole
countryside and devastates crops, even so an uncontrolled pen serves but to destroy." In an
organised society, the rights of press are to be recognized with its duties and responsibilities
towards the society. The wide power of press freedom shall not be utilized for wrong doings.
The presentation of the news has to be truthful and comprehensive without any distorted
expression. Thus press has a greater responsibility to guard against false news and publications
for the simple reason that its utterance can have greater circulation and impact on the people at
large. Apart from this, there is also essential to strike a proper balance between citizen’s right
to privacy and public’s right to information vis-a-vis the role of media so that none of the rights
as guaranteed to the citizens are in conflict with each other. To quote our former Prime
Minister, “Freedom of press is an Article of Faith with us, sanctified by our Constitution,
validated by four decades of freedom and indispensible to our future as a nation.”

SUGGESTIONS

In a democratic country, the government cannot function properly unless the people are well
informed and are free to participate in the public issues having the widest choice of alternate
solutions to the problem that arise. Press serve as a link between the government and the public
at large and hence they are vested with the obligation to communicate and disseminate
information in a bona fide manner. This can be attained only if the press is allowed to represent
its different points of view without any interference from the government. The following
suggestions are offered in this connection:

1. Freedom of press should be expressly provided as a specific fundamental right under

Article 19 of the Constitution of India

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2. Freedom of press should be reasonably restricted so that it does not encroach into the
right to privacy of an individual or hampers the right to fair trial of the accused

3. Trial by media should be discouraged for the simple reason that it media cannot be
allowed to usurp the powers of the court and thereby undermine the confidence of the
public in judicial system.
4. Reasonable restrictions should be imposed on the freedom of speech and expression in
social networking sites as it has now become the most common medium of
communicating with the public at large.

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BIBLIOGRAPHY.
Indian Express Newspapers v Union of India, (1985) 1 SCC 641
Supreme But not Infallible, Soli J. Sorabjee,
C.K. Daphtary v O.P Gupta, AIR 1971 SC 1132
Rao Harnarain v Gumori Ram, AIR 1958 Punj. 273
Bijoyananda v Bala Krishna AIR 1953 Ori 249
The new article was as follows-(2) “Nothing in sub clause (a) of clause (i) shall effect
the operation of any existing law or prevent the state from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the rights conferred by the
said sub clause in the interest of the security of the state, friendly relations with foreign
states, public order, decency or morality or in relation to contempt of court, defamation
or incitement to an offence”
Press and the Law (1990) by Justice A.N.Grover.
Bennett Coleman & Co. & Ors v. Union Of India & Ors
Sakal Papers Ltd v. Union of India
Ramesh Thapper v. State of Madras
Brij Bhushan v. State of Delhi
Printers (Mysore) Ltd v. Assistant Commercial Tax Office
Virendra v. State of Punjab

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