For other uses, see Freedom of the press (disambiguation).
Freedom of the press or freedom of the media is the principle that communicate and express through various mediums, including printed and electronic media, especially published materials, should be considered a right to be exercised freely. Such freedom implies the absence of interference from an overreaching state; its preservation may be sought through constitutional or other legal protections.
With respect to governmental information, any government may distinguish which materials are public or protected from disclosure to the public. State materials are protected due to either of two reasons: the classification of information as sensitive, classified or secret, or the relevance of the information to protecting the national interest. Many governments are also subject to sunshine laws or freedom of information legislation that are used to define the ambit of national interest.
The United Nations' 1948 Universal Declaration of Human Rights states: "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 regardless of frontiers".
This philosophy is usually accompanied by legislation ensuring various degrees of freedom of scientificresearch (known as scientific freedom), publishing, and press. The depth to which these laws are entrenched in a country's legal system can go as far down as its constitution. The concept of freedom of speech is often covered by the same laws as freedom of the press, thereby giving equal treatment to spoken and published expression.
Relationship to self-publishing
Freedom of the press is construed as an absence of interference by outside entities, such as a government or religious organization, rather than as a right for authors to have their works published by other people. This idea was famously summarized by the 20th century American journalist, A. J. Liebling, who wrote, "Freedom of the press is guaranteed only to those who own one". Freedom of the press gives the printer or publisher exclusive control over what the publisher chooses to publish, including the right to refuse to print anything for any reason. If the author cannot reach a voluntary agreement with a publisher to produce the author's work, then the author must turn to self-publishing.
Status of press freedom worldwide
Beyond legal definitions, several non-governmental organizations use other criteria to judge the level of press freedom around the world. Some create subjective lists, while others are based on quantitative data:
- Reporters Without Borders considers the number of journalists murdered, expelled or harassed, and the existence of a state monopoly on TV and radio, as well as the existence of censorship and self-censorship in the media, and the overall independence of media as well as the difficulties that foreign reporters may face to rank countries in levels of press freedom.
- The Committee to Protect Journalists (CPJ) systematically tracks the number of journalists killed and imprisoned in reprisal for their work. It says it uses the tools of journalism to help journalists by tracking press freedom issues through independent research, fact-finding missions, and a network of foreign correspondents, including local working journalists in countries around the world. CPJ shares information on breaking cases with other press freedom organizations worldwide through the International Freedom of Expression Exchange, a global network of more than 119 free expression organizations. CPJ also tracks impunity in cases of journalist murders. CPJ staff applies strict criteria for each case; researchers independently investigate and verify the circumstances behind each death or imprisonment.
- Freedom House studies the more general political and economic environments of each nation in order to determine whether relationships of dependence exist that limit in practice the level of press freedom that might exist in theory. Panels of experts assess the press freedom score and draft each country summary according to a weighted scoring system that analyzes the political, economic, legal and safety situation for journalists based on a 100-point scale. It then categorizes countries as having a free, party free, or not free press.
Annual report on journalists killed and Prison Census
Every year, the Committee to Protect Journalists releases its comprehensive list of all journalists killed in relation to their work, including profiles of each journalist and a database, and an annual census of journalists in jail as of midnight on December 1. 2017 was a record year from journalists jailed with 262 journalists behind bars. Turkey, China and Egypt accounted for more than half of all journalists jailed globally.
Worldwide press freedom index
Every year, Reporters Without Borders establish a subjective ranking of countries in terms of their freedom of the press. Press Freedom Index list is based on responses to surveys sent to journalists that are members of partner organisations of the RWB, as well as related specialists such as researchers, jurists and human rights activists. The survey asks questions about direct attacks on journalists and the media as well as other indirect sources of pressure against the free press, such as non-governmental groups.
In 2016, the countries where press was the most free were Finland, Netherlands, Norway, Denmark and New Zealand, followed by Costa Rica, Switzerland, Sweden, Ireland and Jamaica. The country with the least degree of press freedom was Eritrea, followed by North Korea, Turkmenistan, Syria, China, Vietnam and Sudan.
The problem with media in India, the world's largest democracy, is enormous. India doesn't have a model for a democratic press. The Canadian Journalists for Free Expression (CJFE) has published a report on India stating that Indian journalists are forced—or feel compelled for the sake of job security—to report in ways that reflect the political opinions and corporate interests of shareholders. The report written by Ravi S Jha says "Indian journalism, with its lack of freedom and self-regulation, cannot be trusted now—it is currently known for manipulation and bias."
Freedom of the Press
Freedom of the Press is a yearly report by US-based non-profit organization Freedom House. It is known to subjectively measure the level of freedom and editorial independence that is enjoyed by the press in every nation and significant disputed territories around the world. Levels of freedom are scored on a scale from 1 (most free) to 100 (least free). Depending on the basics, the nations are then classified as "Free", "Partly Free", or "Not Free".
In 2009 Iceland, Norway, Finland, Denmark, and Sweden topped the list with North Korea, Turkmenistan, Myanmar (Burma), Libya, Eritrea at the bottom.
According to Reporters Without Borders, more than a third of the world's people live in countries where there is no press freedom. Overwhelmingly, these people live in countries where there is no system of democracy or where there are serious deficiencies in the democratic process. Freedom of the press is an extremely problematic problem/concept for most non-democratic systems of government since, in the modern age, strict control of access to information is critical to the existence of most non-democratic governments and their associated control systems and security apparatus. To this end, most non-democratic societies employ state-run news organizations to promote the propaganda critical to maintaining an existing political power base and suppress (often very brutally, through the use of police, military, or intelligence agencies) any significant attempts by the media or individual journalists to challenge the approved "government line" on contentious issues. In such countries, journalists operating on the fringes of what is deemed to be acceptable will very often find themselves the subject of considerable intimidation by agents of the state. This can range from simple threats to their professional careers (firing, professional blacklisting) to death threats, kidnapping, torture, and assassination.
Regions closed to foreign reporters
Main article: Media freedom in the European Union
Central, Northern and Western Europe has a long tradition of freedom of speech, including freedom of the press. After World War II, Hugh Baillie, the president of United Press wire service based in the U.S., promoted freedom of news dissemination. In 1966 he called for an open system of news sources and transmission, and minimum of government regulation of the news. His proposals were aired at the Geneva Conference on Freedom of Information in 1948, but were blocked by the Soviets and the French.
Media freedom is a fundamental right that applies to all member states of the European Union and its citizens, as defined in the EU Charter of Fundamental Rights as well as the European Convention on Human Rights.:1 Within the EU enlargement process, guaranteeing media freedom is named a "key indicator of a country's readiness to become part of the EU".
According to the New York Times, "Britain has a long tradition of a free, inquisitive press", but "[u]nlike the United States, Britain has no constitutional guarantee of press freedom." Freedom of the press was established in Great Britain in 1695, with Alan Rusbridger, former editor of The Guardian, stating: “When people talk about licensing journalists or newspapers the instinct should be to refer them to history. Read about how licensing of the press in Britain was abolished in 1695. Remember how the freedoms won here became a model for much of the rest of the world, and be conscious how the world still watches us to see how we protect those freedoms.”
Until 1694, England had an elaborate system of licensing; the most recent was seen in the Licensing of the Press Act 1662. No publication was allowed without the accompaniment of a government-granted license. Fifty years earlier, at a time of civil war, John Milton wrote his pamphletAreopagitica (1644). In this work Milton argued forcefully against this form of government censorship and parodied the idea, writing "when as debtors and delinquents may walk abroad without a keeper, but unoffensive books must not stir forth without a visible jailer in their title." Although at the time it did little to halt the practice of licensing, it would be viewed later a significant milestone as one of the most eloquent defences of press freedom.
Milton's central argument was that the individual is capable of using reason and distinguishing right from wrong, good from bad. In order to be able to exercise this ration right, the individual must have unlimited access to the ideas of his fellow men in “a free and open encounter." From Milton's writings developed the concept of the open marketplace of ideas, the idea that when people argue against each other, the good arguments will prevail. One form of speech that was widely restricted in England was seditious libel, and laws were in place that made criticizing the government a crime. The King was above public criticism and statements critical of the government were forbidden, according to the English Court of the Star Chamber. Truth was not a defense to seditious libel because the goal was to prevent and punish all condemnation of the government.
Locke contributed to the lapse of the Licensing Act in 1695, whereupon the press needed no license. Still, many libels were tried throughout the 18th century, until "the Society of the Bill of Rights" led by John Horne Tooke and John Wilkes organised a campaign to publish Parliamentary Debates. This culminated in three defeats of the Crown in the 1770 cases of Almon, of Miller and of Woodfall, who all had published one of the Letters of Junius, and the unsuccessful arrest of John Wheble in 1771. Thereafter the Crown was much more careful in the application of libel; for example, in the aftermath of the Peterloo Massacre, Burdett was convicted, whereas by contrast the Junius affair was over a satire and sarcasm about the non-lethal conduct and policies of government.
In Britain's American colonies, the first editors discovered their readers enjoyed it when they criticized the local governor; the governors discovered they could shut down the newspapers. The most dramatic confrontation came in New York in 1734, where the governor brought John Peter Zenger to trial for criminal libel after the publication of satirical attacks. The defense lawyers argued that according to English common law, truth was a valid defense against libel. The jury acquitted Zenger, who became the iconic American hero for freedom of the press. The result was an emerging tension between the media and the government. By the mid-1760s, there were 24 weekly newspapers in the 13 colonies, and the satirical attack on government became common features in American newspapers.
John Stuart Mill in 1869 in his book On Liberty approached the problem of authority versus liberty from the viewpoint of a 19th-century utilitarian: The individual has the right of expressing himself so long as he does not harm other individuals. The good society is one in which the greatest number of persons enjoy the greatest possible amount of happiness. Applying these general principles of liberty to freedom of expression, Mill states that if we silence an opinion, we may silence the truth. The individual freedom of expression is therefore essential to the well-being of society. Mill wrote:
- If all mankind minus one, were of one opinion, and one, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.
Between September 4, 1770 and October 7, 1771 the kingdom of Denmark–Norway had the most unrestricted freedom of press of any country in Europe. This occurred during the regime of Johann Friedrich Struensee, whose second act was to abolish the old censorship laws. However, due to the great amount of mostly anonymous pamphlets published that was critical and often slanderous towards Struensee's own regime, he reinstated some restrictions regarding the freedom of press a year later, October 7, 1771.
See also: Censorship in Italy
After the Italian unification in 1861, the Albertine Statute of 1848 was adopted as the constitution of the Kingdom of Italy. The Statute granted the freedom of the press with some restrictions in case of abuses and in religious matters, as stated in Article 28:
The press shall be free, but the law may suppress abuses of this freedom. However, Bibles, catechisms, liturgical and prayer books shall not be printed without the prior permission of the Bishop.
After the abolition of the monarchy in 1946 and the abrogation of the Statute in 1948, the Constitution of the Republic of Italy guarantees the freedom of the press, as stated in Article 21, Paragraphs 2 and 3:
The press may not be subjected to any authorisation or censorship. Seizure may be permitted only by judicial order stating the reason and only for offences expressly determined by the law on the press or in case of violation of the obligation to identify the persons responsible for such offences.
The Constitution allows the warrantlessconfiscation of periodicals in cases of absolute urgency, when the Judiciary cannot timely intervene, on the condition that a judicial validation must be obtained within 24 hours. Article 21 also gives restrictions against those publications considered offensive by public morality, as stated in Paragraph 6:
Publications, performances, and other exhibits offensive to public morality shall be prohibited. Measures of preventive and repressive measure against such violations shall be established by law.
Nazi Germany (1933–1945)
In 1933 freedom of the press was suppressed in Nazi Germany by the Reichstag Fire Decree of President Paul Von Hindenburg, just as Adolf Hitler was coming to power. Hitler largely suppressed freedom of the press through Joseph Goebbels' Ministry of Public Enlightenment and Propaganda. The Ministry acted as a central control-point for all media, issuing orders as to what stories could be run and what stories would be suppressed. Anyone involved in the film industry—from directors to the lowliest assistant—had to sign an oath of loyalty to the Nazi Party, due to opinion-changing power Goebbels perceived movies to have. (Goebbels himself maintained some personal control over every single film made in Nazi Europe.) Journalists who crossed the Propaganda Ministry were routinely imprisoned.
Sweden and Finland
One of the world's first freedom of the press acts was introduced in Sweden in 1766, mainly due to classical liberal member of parliament, Ostrobothnian priest, Anders Chydenius. Excepted and liable to prosecution was only vocal opposition to the King and the Church of Sweden. The Act was largely rolled back after King Gustav's coup d'état in 1772, restored after the overthrowing of his son, Gustav IV of Sweden in 1809, and fully recognized with the abolition of the king's prerogative to cancel licenses in the 1840s.
Main article: Freedom of the press in the United States
The First Amendment of the United States Constitution states:
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 grievances.
Section 2(b) of the Canadian Charter of Rights and Freedoms states that everyone has "the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." 
The open court principle ensures the freedom of the press by requiring that court proceedings presumptively be open and accessible to the public and to the media.
Main article: Freedom of the press in China
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Singapore's media environment is considered to be highly controlled by the government.
The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement to an offense". Laws such as the Official Secrets Act and Prevention of Terrorist Activities Act (PoTA) have been used to limit press freedom. Under PoTA, person could be detained for up to six months for being in contact with a terrorist or terrorist group. PoTA was repealed in 2006, but the Official Secrets Act 1923 continues.
For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..." With the liberalization starting in the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government.
It ranks poorly at 136th rank out of 179 listed countries in the Press Freedom Index 2013 released by Reporters Without Borders (RWB). Analytically India's press freedom, as could be deduced by the Press Freedom Index, has constantly reduced since 2002, when it culminated in terms of apparent freedom, achieving a rank of 80 among the reported countries.
Implications of new technologies
Many of the traditional means of delivering information are being slowly superseded by the increasing pace of modern technological advance. Almost every conventional mode of media and information dissemination has a modern counterpart that offers significant potential advantages to journalists seeking to maintain and enhance their freedom of speech. A few simple examples of such phenomena include:
- Satellite television versus terrestrial television: Whilst terrestrial television is relatively easy to manage and manipulate, satellite television is much more difficult to control as journalistic content can easily be broadcast from other jurisdictions beyond the control of individual governments. An example of this in the Middle East is the satellite broadcaster Al Jazeera. This Arabic-language media channel operates out of Qatar, whose government is relatively liberal compared to many of its neighboring states. As such, its views and content are often problematic to a number of governments in the region and beyond. However, because of the increased affordability and miniaturisation of satellite technology (e.g. dishes and receivers) it is simply not practicable for most states to control popular access to the channel.
- Internet-based publishing (e.g., blogging, social media) vs. traditional publishing: Traditional magazines and newspapers rely on physical resources (e.g., offices, printing presses) that can easily be targeted and forced to close down. Internet-based publishing systems can be run using ubiquitous and inexpensive equipment and can operate from any global jurisdiction. Nations and organisations are increasingly resorting to legal measures to take control of online publications, using national security, anti-terror measures and copyright laws to issue takedown notices and restrict opposition speech.
- Internet, anonymity software and strong cryptography: In addition to Internet-based publishing the Internet in combination with anonymity software such as Tor and cryptography allows for sources to remain anonymous and sustain confidentiality while delivering information to or securely communicating with journalists anywhere in the world in an instant (e.g. SecureDrop, WikiLeaks)
- Voice over Internet protocol (VOIP) vs. conventional telephony: Although conventional telephony systems are easily tapped and recorded, modern VOIP technology can employ low-cost strong cryptography to evade surveillance. As VOIP and similar technologies become more widespread they are likely to make the effective monitoring of journalists (and their contacts and activities) a very difficult task for governments.
Naturally, governments are responding to the challenges posed by new media technologies by deploying increasingly sophisticated technology of their own (a notable example being China's attempts to impose control through a state-run internet service provider that controls access to the Internet) but it seems that this will become an increasingly difficult task as journalists continue to find new ways to exploit technology and stay one step ahead of the generally slower-moving government institutions that attempt to censor them.
In May 2010, U.S. President Barack Obama signed legislation intended to promote a free press around the world, a bipartisan measure inspired by the murder in Pakistan of Daniel Pearl, the Wall Street Journal reporter, shortly after the September 11 attacks in 2001. The legislation, called the Daniel Pearl Freedom of the Press Act, requires the United States Department of State to expand its scrutiny of news media restrictions and intimidation as part of its annual review of human rights in each country. In 2012 the Obama Administration collected communication records from 20 separate home and office lines for Associated Press reporters over a two-month period, possibly in an effort to curtail government leaks to the press. The surveillance caused widespread condemnation by First Amendment experts and free press advocates, and led 50 major media organizations to sign and send a letter of protest to American attorney general Eric Holder.
Organizations for press freedom
- ^"Universal Declaration of Human Rights". United Nations. Retrieved 7 August 2017.
- ^ abcPowe, L. A. Scot (1992). The Fourth Estate and the Constitution: Freedom of the Press in America. University of California Press. ISBN 9780520913165.
- ^"2017 World Press Freedom Index". Reporters Without Borders. 2017.
- ^"2016 World Press Freedom Index". Reporters Without Borders. 2016. Retrieved 12 May 2016.
- ^ ab"Description: Reporters Without Borders". The Media Research Hub. Social Science Research Council. 2003. Archived from the original on 9 January 2011. Retrieved 23 September 2012.
- ^Freedom House (2005). "Press Freedom Table (Press Freedom vs. Democracy ranks)". Freedom of the Press 2005. UK: World Audit. Retrieved 23 September 2012.
- ^"Editor's daughter killed in mysterious circumstances", International Freedom of Expression Exchange (IFEX), 2 July 2002
- ^"Ukraine remembers slain reporter", BBC News, 16 September 2004
- ^"Do journalists have the right to work in Chechnya without accreditation?". Moscow Media Law and Policy Center. March 2000. Archived from the original on 2008-10-09. Retrieved 2008-09-06.
- ^"India praises McCain-Dalai Lama meeting". Washington, D.C.: WTOPews.com. July 27, 2008. Retrieved 2008-09-06.
- ^Landay, Jonathan S. (March 20, 2008). "Radical Islamists no longer welcome in Pakistani tribal areas". McClatchy Washington Bureau. Archived from the original on October 6, 2008. Retrieved 2008-09-06.
- ^Eleonora W. Schoenebaum, ed. (1978), Political Profiles: The Truman Years, pp. 16–17, Facts on File Inc., ISBN 9780871964533.
- ^Maria Poptcheva, Press freedom in the EU Legal framework and challenges, EPRS | European Parliamentary Research Service, Briefing April 2015
- ^"European Neighbourhood Policy and Enlargement Negotiations". European Commission. Archived from the original on 2016-01-24. Retrieved 2016-02-08.
- ^"British Press Freedom Under Threat", Editorial, New York Times, 14 November 2013. Retrieved 19 November 2013.
- ^"Leveson Inquiry: British press freedom is a model for the world, editor tells inquiry". The Telegraph. 14 October 2017.
- ^ abSanders, Karen (2003). Ethics & Journalism. Sage. p. 66. ISBN 978-0-7619-6967-9.
Very serious situation
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The Constitution of India provides the right of freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the Freedom of speech and expression, as one of its six freedoms.
History and Timeline
The law in the current form finds it's root in the Hate Speech Law Section 295(A) enacted by the British Administration in India. This act was brought about in the backdrop of a series of murders of Arya Samaj leaders who polemicized against Islam. This started in 1897 with the murder of Pandit Lekhram by a Muslim because he had written a book criticizing Islam.Koenraad Elst argues that "Section 295A was not instituted by Hindu society, but against it. It was imposed by the British on the Hindus in order to shield Islam from criticism". The murder series caught lime-light in December, 1926 after the murder of Swami Shraddhananda for the protection he gave to a family of converts from Islam to Hinduism in addition to writing Hindu Sangathan, Saviour of the Dying Race in 1926.
Precedence to this law started even before this as in a case against Arya Samaj preacher Dharm Bir in 1915, ten Muslims were sentenced for rioting, but Dharm Bir was also charged under section 298 for “using offensive phrases and gestures (…) with the deliberate intention of wounding the religious feelings” of another community; and under Section 153, for “wantonly provoking the riot which subsequently occurred” and “a judge was brought in who could assure conviction”.
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 provided 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 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, Chief Justice 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:
- freedom of access to all sources of information,
- freedom of publication, and
- freedom of circulation.
In India, the press has not been able to practise 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 Supreme Court of India 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 rebuttal of the Government that it would help small newspapers to grow[how?].
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.
Under Indian law, the freedom of speech and of the press do not confer an absolute right to express one's thoughts freely.Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech under following heads:
- I. security of the State,
- II. friendly relations with foreign States,
- III. public order,
- IV. decency and morality,
- V. contempt of court,
- VI. defamation,
- VII. incitement to an offence, and
- VIII. sovereignty and integrity of India.
Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.
Security of the State: Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. All the utterances intended to endanger the security of the State by crimes of violence intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained in the interest of the security of the State. It does not refer to the ordinary breaches of public order which do not involve any danger to the State.
Friendly relations with foreign States: This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it tends to jeopardise the friendly relations of India with other State.
Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court's decision in Romesh Thapar, s case (AIR 1950 SC 124). The expression 'public order' connotes the sense of public peace, safety and tranquillity.
In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences between three concepts: law and order, public order, security of State. Anything that disturbs public peace or public tranquillity disturbs public order. But mere criticism of the government does not necessarily disturb public order. A law punishing the utterances deliberately tending to hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to maintaining the public order.
It is also necessary that there must be a reasonable nexus between the restriction imposed and the achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya (AIR 1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a person if he incited a single person not to pay or defer the payment of Government dues, as there was no reasonable nexus between the speech and public order. Similarly, the court upheld the validity of the provision empowering a Magistrate to issue directions to protect the public order or tranquillity.
Decency and morality: The word 'obscenity' is identical with the word 'indecency' of the Indian Constitution. In an English case of R. v. Hicklin, the test was laid down according to which it is seen 'whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences'. This test was upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the book Lady Chatterley's Lover. The standard of morality varies from time to time and from place to place.
Contempt of court: The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act. But judges do not have any general immunity from criticism of their judicial conduct, provided that it is made in good faith and is genuine criticism, and not any attempt to impair the administration of justice. In In re Arundhati Roy ((2002) 3 SCC 343), the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp v. Florida (328 US 331 : 90 L Ed 1295 (1946)) in which the United States Supreme Court observed: "If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise". In E.M.S. Namboodripad v. T.N. Nambiar ((1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah ((1984) 2 SCC 343; AIR 1984 SC 615.), contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.
Defamation: The clause (2) of Article 19 prevents any person from making any statement that injures the reputation of another. With the same view, defamation has been criminalised in India by inserting it into Section 499 of the I.P.C. Where defamation is concerned, in case of a criminal defamation suit as laid down in Sections 499 and Section 500 of the Indian Penal Code, the issue - in question - being the truth isn’t considered a defence. Even if a person has spoken the truth, he can be prosecuted for defamation. Under the first exception to Section 499, truth will only be a defence if the statement was made ‘for the public good.’ And that, is a question of fact to be assessed by the judiciary. The erstwhile Economic & Political Weekly (EPW) Editor Paranjoy Guha Thakurta’s resignation following a legal notice by the lawyers for Adani Power Limited (APL) to the owners – the trustees of Sameeksha Trust, which owns and runs the Journal, Editor and authors of an article later withdrawn for “failing to meet editorial standards,” brought the reach of IPC's Section 499 back into limelight.
Incitement to an offense: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offense.
Sovereignty and integrity of India: This ground was also added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.
Practical constraints and curtailments
Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, though freedom activists, as well as most scholars and industrialised jurisdictions throughout the world recognise that freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.
According to the estimates of Reporters Without Borders, India ranks 136th worldwide in press freedom index (press freedom index for India is 39.33 for 2007). The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under subclause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court, defamation, or incitement to an offence". Laws such as the Official Secrets Act and Prevention of Terrorism Act(POTA) have been used to limit press freedom. Under POTA, person could be detained for up to six months before the police were required to bring charges on allegations for terrorism-related offences. POTA was repealed in 2004, but was replaced by amendments to UAPA. The Official Secrets Act 1923 remains in effect.
For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..."  On 26 June 1975, the day after the so-called emergency was declared in violation of the natural rights of Indian citizens, the Mumbai edition of The Times of India in its obituary column carried an entry that read "D.E.M O'Cracy beloved husband of T.Ruth, father of L.I.Bertie, brother of Faith, Hope and Justica expired on 26 June". With the liberalisation starting in the 1990s, private control of media has increased, leading to increasing independence and greater scrutiny of government.
Organisations like Tehelka and NDTV have been particularly influential, e.g. in bringing about the resignation of powerful Haryana minister Venod Sharma. In addition, laws like Prasar Bharati act passed in recent years contribute significantly to reducing the control of the press by the government. In recent times, the Indian government has been accused of trying to curtail this freedom through various means.
According to the English Law, sedition embraces all the practices whether by word or writing which are calculated to disturb the tranquillity of the State and lead an ignorant person to subvert the Government. Basic criticism of the government is not seen as sedition unless the Government believes that it was calculated to undermine the respect for the government in such a way so as to make people cease to obey it. Section 124A of the Indian Penal Code defines the offence of sedition as follows: "Sedition. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine". But Explanation 3 says "Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section". In Kedar Nath v. State of Bihar (AIR 1962 SC 955), the court upheld the constitutional validity of the Section 124A of I.P.C and also upheld the view taken in Niharendu’s case.
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- ^Virendra v. State of Punjab, AIR 1957 SC 896; Express Newspapers v. Union of India, AIR 1958SC 578, 617.
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- ^LR 3 QB 360.
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- ^Niharendra v. Emperor, AIR 1942 FC 22
- ^Section 124A of the Code