LEAKS AND THE LIMITS OF PRESS FREEDOM: SPECIAL FOCUS ON JUDICIAL DEFAMATION
For decades, press freedom has been one of the most contentious issues. The press has long been seen as the fourth pillar of every democratic system. For a democracy to function properly, the press must be free of executive and judicial influence and action. Press freedom could be a stepping stone toward any free society. Freedom of the press implies that there is no interference from an overbearing government, and its preservation can be sought through the Indian constitution or other legal protection and security legislation. Everyone has the right to freedom of opinion and expression, according to the United Nations’ Universal Declaration of Human Rights, which states that “everyone has the right to freedom of opinion and expression, including the freedom to hold opinions without interference and the freedom to seek, receive, and impart information and ideas through any media, regardless of frontiers.[i]
WHY DO WE NEED INDEPENDENT PRESS?
Data should be freely exchanged for democracy to function properly. A free press can inform the public about the benefits and drawbacks of government initiatives. People’s needs should always be communicated to the government so that the appropriate steps can be taken to address them. Public participation in political life is always favored by a free press. A free press is always required to hold the government accountable for its failures and wrongdoings. The voices of oppressed groups are always silenced. The free press has the potential to be a voice for these neglected groups. These characteristics made the press, after the legislature, the executive, and the judiciary, the fourth pillar of the Indian Constitution.[ii]
PRESS OF PRESS – MEANING BROADENED
The press is not immune from any general law of liability for civil and Defamation as held in Printers Mysore vs. Assistant Commercial Law Officer, JT[iii].
It is quite evident that freedom of the press is not expressly defined anywhere in Art. 19[iv] of the Indian Constitution but it has been held to flow from general freedom of speech and expression. Courts through its previous precedents made it clear that freedom not only includes freedom to write and publish but also the freedom to carry out any business.
It was done so to prevent the excessive burden of restricting circulation.
(1) Virendra v. State of Punjab.[v] (ii) Express Newspapers v. Union of India[vi] (iii) Bennett Coleman v. Union of India.[vii] (iv) Prabha v. Union of India.[viii] (v) Indian Express Newspapers v. Union of India.[ix] (vi) Sakal Papers v. Union of India.[x] (vi) Indian Express Newspapers v. Union of India.[xi] (viii) Sharma v. Sri Krishna.[xii]
These cases have paved the way for freedom of speech and expression with freedom of the press. Also broadened the meaning of the terms under article 19 of the Indian Constitution[xiii].
WHAT ARE THE THREATS TO FREEDOM OF THE PRESS?
Fake news has always been dangerous to the freedom of the press. The government in the garb of Regulations may impose restrictions on the news channels. Such restrictions can act as a hindrance in the press freedom.
Nowadays the press has been influenced a lot by money and the press has been allegedly becoming biased. The attack against journalists has increased. Gauri Lankesh, a famous journalist, has been killed in daylight.[xiv] The security of journalists has always been the main issue. Intimidation of journalists was even highlighted by the Freedom House, the US in its Human Rights report 2020.[xv]
In addition to Political Influence, Corporate influence also poses a hindrance to the freedom of the press. Corporations give money to the press to show biased news.[xvi]
REGULATORS OF PRESS
The Press Council of India[xvii] is a regulatory body of the press. It was established under the Press Council of India Act of 1978[xviii].
It was established to protect press freedom. Improving and maintaining the quality of the newspapers is also one of the main goals to be established.[xix]
HOW DOES THE PRESS IMPROVE ITSELF?
Improvement can be achieved by improving the institutional framework. Warning and fine can be given by the Press Council of India in case of any violation of media ethics. News Broadcasters Association, which regulates private television news and broadcasts, should get statutory status. Regulations can be improved to restore faith among the people in the press. Hard punishments should be made for showing any fake news.[xx]
Media ethics including truth, accuracy, transparency, fairness, non-biases, prejudice, etc should be adhered to while showing any news.[xxi]
CENSORSHIP IN USA
Restraint in the USA would always be condemned as informal censorship.
Blacklisting was one of the most prominent restraints in the USA. Under such restraint, the authority is used to compile a list of publications for objectionable publications.
Warnings were also given to the publishers unless they cooperate. Legal actions will be always taken against those publishers which have been listed.
But later on, the Supreme Court of the USA held that the listing of newspapers violates Due process of law as they are not counterchecked by any judicial determination and authority.
CENSORSHIP IN UK
When a serious violation of freedom of expression happens, restraint will be imposed. With the motive of restraining access to the objectionable matter from the public sphere. Punishments can also be given as it is also regarded as a legitimate compromise. The last resort should be only the prior restraint.
Prior restraints have been subjected to high-level scrutiny by ECHR. These are more applicable to perishable commodities.[xxii]
Prior restraint should never be tolerated. Even there was a condemnation by the court when there was a ban on the news in case of political advertisements.[xxiii]
WHAT CONSTITUTES RESTRICTION UPON FREEDOM OF THE PRESS?
This right has been confined to citizens only. A non-citizen who is running out of any pressing business is not entitled to get the benefit of liberty of the press guaranteed under article 19 (1)(a).[xxiv]
So, we can deduce that the press which is run by foreign journalists is under greater control. This situation was not there before independence when there was no constitutional protection in favor of either citizens or non-citizens.[xxv]
In continuation, it can be said that the term citizenship which is given in our constitution is confined to natural persons only.[xxvi]
It is constitutionally permissible to put any restriction on the face of the freedom of speech and expression i.e., press.
If the state is imposing any restrictions on the Press then the test of reasonability will be judged in the same way as it will apply to other citizens under Article 19(2)[xxvii].[xxviii]
It will constitute a restriction upon the freedom of the press if any restriction is imposed on the right to publish[xxix] , propagate or circulate the information.[xxx]
Right to publish includes the right to publish own views plus those of its correspondents.[xxxi] Even the circulation as well as the volume of the circulation has right itself.
Reducing the space for advertisements will directly affect circulation and the price will get high.[xxxii]
Such things which will affect the independence of the editorial authority of any newspaper will also amount to a violation of the freedom of the press.[xxxiii]
The choice of what to publish in the news columns of a newspaper is vested in the editor of the newspaper.[xxxiv]
CENSORSHIP OF THE PRESS ON COURT’S CONTEMPT
There is no particular provision in our constitution regarding press freedom.
In the case of Express Newspapers vs. Union of India, it was decided that article 19(1) (a)’s of freedom of expression encompasses freedom of the press in its broadest sense.[xxxv]
If absolute and unrestricted freedom is granted at all times and in all places, it will result in chaos and anarchy.[xxxvi] Newspapers are frequently utilized to exercise one’s right to free expression.[xxxvii]
Excessive voicing of opinion does not exonerate the publication of any responsibility.
The court may use its contempt powers if someone tries to smear the court’s reputation or degrade its dignity under the pretense of exercising the freedom of speech and expression protected by article 19(1) of the Indian constitution.[xxxviii]
Under Article 19(1)(a), freedom of speech and expression is subject to reasonable restrictions on public decency and morality (2). As a result, material that has the potential to deprive or corrupt public morality may be prevented or limited.
Clause (1) of Article 19 does not favor one freedom over another, hence press freedom cannot be considered a preferential right.[xxxix]
Freedom of speech and expression is always a treasured and beneficial right of the people in every democratic society. But, at the same time, the judiciary’s independence and integrity must be preserved.
It is always vital to strike a balance between the two values.
The high court can punish contempt under Article 215[xl] of the Indian Constitution, and the Supreme Court has the power to punish contempt under Article 129[xli] of the Indian Constitution.
The right to free speech and expression is protected under Articles 19(2)[xlii], 129, and 215 of the Constitution. The court’s authority should be safeguarded.
Courts’ authority should be retained, and obstacles to the administration of justice should be removed.
In the case of EMS Namboodiri pad vs. T.N. Nambiar[xliii], referring to judges as oppressors, a powerful person who preaches hatred and always favors the wealthy over the poor will be held in contempt of court. The reason for this is that it will erode the legal system’s and courts’ power. In the eyes of the public, it will also diminish the reputation and dignity of judges and courts.
In the case of Narmada Bachao Andolan vs. Union of India[xliv] and D.C. Saxena vs. Hon’ble Chief Justice of India[xlv], it was held that no one has the right to distort judicial proceedings and orders under the cover of freedom of speech and expression. Also, depicting the judiciary in such a way that portrays an incomplete and incorrect image of the judiciary, can embarrass the court and cause controversy or ridicule. While it is undeniable that freedom of speech and expression is at the heart of any democracy, these rights are subject to some limitations. Scandalizing or putting the court in contempt is one such prohibition.
In the case of Rajendra Sail vs. MPHC Bar Association[xlvi], the reach of the media, in the present times of 24-hour channels, is to almost every nook and corner of the world.
Further, a large number of people believe that which appears in media, print or electronic. The judgments of courts are public documents and can be commented upon, analyzed, and criticized, but it has to be in a dignified manner without attributing motives.
In Sakal Papers Limited vs. Union of India[xlvii], the only limitations on an individual’s rights that can be imposed under Article 19(1)(a) are the criteria stated in Article 19(1)(a) (2). Art. 19(1)(a) is not a “guardian of unrestricted talkativeness” held in the case of Bennet Colemon and Co v. U.O.I.[xlviii]
In the case of Harjai Singh and Express Newspapers(P) vs. Union of India[xlix], it was held that however, as allowing limitless freedom of speech and expression would amount to an unchecked license, freedom of the press is not absolute, unlimited, and unrestrained at all times and under all circumstances. Freedom must not be misinterpreted to mean that the press is free to ignore its responsibility. Public order, morality, and decency, among other things, must be protected. Even for the preservation of the press, some limits are required.
In the case of the Director General, Directorate General of Doordarshan v. Anand Patwardhan[l], the press restriction should not be arbitrary, unreasonable, or beyond what is required in a circumstance that is in the public interest. The court would evaluate whether the restrictions on fundamental rights are disproportionate to the situation and are not the least restrictive on options.
The burden of proof of proving whether the restrictions are reasonable lies on the State.
In the case of Arunachala Nadar vs. the State of Madras[li] and MRF v. Inspector Kerala Government[lii], To be legitimate, a restriction must have a direct and proximate nexus or reasonable relationship with the legislative goal and must not be more than the goal.
Citizens are misinformed about how democracy works as a result of one-sided information, deception, and misinformation. As a result, democracy will become a farce.[liii]
The recent ranking in the world press freedom index placed India at the 142nd position. This ranking has always been used to show the condition of the press in India. The press of India has always been alleged as favoring the Government. The government from time to time imposed restrictions on the Press to safeguard their interests. The time of the Emergency will always be remembered as the time when all the freedom of the press was snatched away. The printing plants were searched and the newspapers fell out of circulation for the next two days after Prime Minister Indira Gandhi declared a state of emergency, suspending freedom of speech as a basic right.[liv] Indira Gandhi’s government established some guidelines for the press, which were rigidly enforced. During the 21-month emergency, the country’s media was under attack, and the international media was racing to get stories out about the situation in the country, where constitutional rights had been suspended. The rumors were not to be published in any of the newspapers. The editor had to get authorization from the government before publishing the news.[lv] Only after that need for press freedom grows louder. The press is the people’s voice. When people’s feelings and rights are suppressed, it is the press’s responsibility to speak up. Communist regimes, such as China, are notorious for limiting journalistic freedom and rights. Without informing the Wikimedia Foundation, China has disabled all available versions of Wikipedia in the country.[lvi] Chinese journalists are routinely accused of spreading anti-government propaganda under pretenses. In 2016, more than 20 journalists were imprisoned for criticizing President Xi Jinping. According to a 2016 study by the Committee to Protect Journalists, China is a “prolific jailer of media professionals,” with an estimated 49 journalists serving prison terms.[lvii]No one wants to live under such restrictions. The author is not against the restrictions but for the personal interests of the government, no one has the right to impose restrictions on the speech and expression of any individual. Freedom of speech and expression is a crucial component of journalistic freedom. The freedom of speech and expression includes the dissemination of ideas as well as the freedom of circulation of ideas.[lviii]
In democratic machinery, the press always has a significant role.[lix] The government has no legal authority to impose prior restraints on the press for any publications that contain defamation of its officials. Even governmental authorities who believe or suspect that their officials may be defamed by the press are powerless to prohibit such releases.[lx]
Thomas Friedman correctly stated that the more time you spend in India, the more you will perceive India as a miracle. To sum up, it is correct to say that press freedom should be preserved, but “reasonable limits” can also be imposed to protect national security, public decency, morality, and foreign relations, among other things. Guidelines can be set to preserve decency, for example, if the media portrays rape victims in a way that jeopardizes their decency, then constraints on the media are necessary to safeguard that decency. The press should always work to raise people’s voices and expose difficulties that the country faces, such as rising gasoline prices, unemployment, and rapes. For personal reasons, the press should not always favor the government. The public’s faith in the press should be maintained at all times. Citizens should be able to rely on government policies without bias. Biased and incorrect information must always be discarded. The fourth pillar of democracy must have solid pillars, or else democracy will sag.
This article has been authored by JAY KUMAR GUPTA, a student of the School of Law, NMIMS, Bangalore, currently in the second year pursuing BBA LL.B.(Hons.)
[i] “Universal Declaration of Human Rights”. United Nations. Retrieved 7 August 2017.
[ii] DrishtiIAS, Freedom of Media (Last visited: April 24,2022) https://www.drishtiias.com/daily-news-analysis/freedom-of-media-1
[iii] Printers Mysore vs. Assistant Commercial Law Officer, JT, 1994 SCR (1) 682, 1994 SCC (2) 434
[iv] Constitution of India,1950, art. 19
[v] Virendra v. State of Punjab, AIR 1958 SC 986
[vi] Express Newspapers v. Union of India, AIR 1958 SC 578
[vii] Bennett Coleman v. Union of India, AIR 1973 SC 106
[viii] Prabha v. Union of India, AIR 1982 SC 6
[ix] Indian Express Newspapers v. Union of India, AIR 1986 SC 515
[x] Sakal Papers v. Union of India, AIR 1962 SC 305
[xi] Indian Express Newspapers v. Union of India, AIR 1986 SC 872
[xii] Sharma v. Sri Krishna AIR 1959 SC 395,402
[xiii] Constitution of India,1950, art. 19
[xiv] Siddhartha Deb, The killing of Gauri Lankesh, Columbia Journalism Review (2018) https://www.cjr.org/special_report/gauri-lankesh-killing.php
[xv] Infra note 16
[xvi] DrishtiIAS, Freedom of Media (Last visited: April 24,2022) https://www.drishtiias.com/daily-news-analysis/freedom-of-media-1
[xvii] Garvit Bhirani, Press Council of India: Meaning, Structure and Functions., My India (July 22,2022) https://www.mapsofindia.com/my-india/education/press-council-of-india-meaning-structure-and-functions
[xviii] Press Council of India act,1978, No. 37 of 1978, Acts of Parliament,1978(India)
[xix] Supra Note 17
[xx] Supra Note 16
[xxii] Observer and guardian newspapers v. UK, (1992) 14 EHRR 153.
[xxiii] VGT v. Switzerland (2002) 34 EHRR 159
[xxiv] Constitution of India,1950, art. 19 cl.1(a)
[xxv] Sharma v. Srikrishna AIR 1959 SC 395
[xxvi] Tata Engg. Co. v. State of Bihar, AIR 1965 SC 40: (1964) 6 SCR 885 and Amritsar Municipality v. State of Punjab, AIR 1969 SC 1100: (1969) 1 SCC 475.
[xxvii] Constitution of India,1950, art. 19 cl.2
[xxviii] Tata Engg. Co. v. State of Bihar, AIR 1965 SC 40: (1964) 6 SCR 885, Express Newspapers vs. Union of India, AIR 1958 SC 578, and Bennett Coleman v. Union of India, AIR 1973 SC 106
[xxix] Virendra v. State of Punjab, AIR 1958 SC 986
[xxx] Express Newspapers vs. Union of India, AIR 1958 SC 578 and Sakal Papers v. Union of India, AIR 1962 SC 305
[xxxiii] Infra note 36
[xxxiv] AG v. Times Newspaper,  EWCA Civ 97;  1 WLR 885;  EMLR 530
[xxxv] Express Newspapers vs. Union of India, AIR 1958 SC 578
[xxxvi] Re Harjai Singh, (1996) 6 SCC 466 (para 10): AIR 1997 SC 73
[xxxvii] Hindustan Times vs. State of UP, (2003) 1 SCC 591
[xxxviii] Re, Arundhati Roy, AIR 2002 SC 1375
[xxxix] Sakal papers v. Union of India,AIR 1962 SC 305: (1962) 3 SCR 842
[xl] The Constitution of India,1950, Art. 215
[xli] The Constitution of India,1950, Art. 129
[xlii] The Constitution of India,1950, Art. 19 cl. (2)
[xliii] E. M. Sankaran Namboodiripad vs T. Narayanan Nambiar 1970 AIR 2015, 1971 SCR (1) 697
[xliv] Narmada Bachao Andolan vs. Union of India 10 S.C.C. 664
[xlv] D.C. Saxena vs. Hon’ble Chief Justice of India 1996 SCC (7) 216
[xlvi] Rajendra Sail vs. Mphc Bar Association Appeal (crl.) 398-399 of 2001
[xlvii] Sakal Papers Limited vs. Union of India 1962 AIR 305, 1962 SCR (3) 842
[xlviii] Bennet Colemon and Co v. U.O.I.  2 S.C.R. 757
[xlix] Harjai Singh and Express Newspapers(P) vs. Union of India AIR 1997 SC 73, 1996 (2) ALD Cri 906, 1997 (1) ALT Cri 148, 1997 (1) BLJR 907, 1997 CriLJ 58, JT 1996 (8) SC 332, 1996 (6) SCALE 728, (1996) 6 SCC 466, 1996 Supp 6 SCR 411, (1996) 4 UPLBEC 2787
[l] Director General, Directorate General of Doordharshan v. Anand Patwardhan
[li] Arunachala Nadar vs. State of Madras 1959 AIR 300, 1959 SCR Supl. (1) 92
[lii] MRF v. Inspector Kerala Government Civil Appeal No. 5585 of 1993
[liii] Union of India v/s Association for Democratic Reforms 2002 (3) SCR 294
[liv] Timesnowdigital, Emergency in India: How the Press was affected in 1975-77(Last visited: 24th April,2022) https://www.timesnownews.com/india/article/emergency-in-india-how-the-press-was-affected-in-1975/246017
[lvi] BBC news, Wikipedia blocked in China in all languages (Last visited: April 24,2022) https://www.bbc.com/news/technology-48269608
[lvii]Charlie Campbell, China Just Earned Its Worst Ever Score in an Annual Global Press Freedom Survey, Time (April 28,2016) https://time.com/4310607/china-press-freedom-media-xi-jinping-censorship-human-rights/
[lviii] Romesh Thappar vs The State of Madras 1950 AIR 124, 1950 SCR 594 and Brij Bhushan vs Union of India 1950 AIR 129
[lix] Supra Note 2
[lx] R.Rajagopal v. State of T 1995 AIR 264, 1994 SCC (6) 632