Professional Documents
Culture Documents
3. MEDIA IN CONSTITUTIONAL
FRAMEWORK
3.1. Freedom of Speech and Expression in Indian Constitution:
Significance of Freedom of speech in Democracy: The people of
India gave to themselves, the Constitution of India, with a view to
make a sovereign, democratic, socialistic republic. In our
democratic society, place of pride has been provided to freedom
of speech and expression which is the mother of all liberties. The
Liberty of thought, expression, belief, faith and worship is one of
the basic concepts of our democratic Constitution. The objective
part of the Constitution of India, i.e., the Preamble declares that
the liberty encompassing several other basic freedoms like
thought and expression as one of the assurances that were given
to the people. These expressions indicate the priorities of the
Constitution with regard to fundamental right to freedom of
speech and expression, which assumes significance as it embodies
within it a great scope for building a unified and civilized human
society through communications. Freedom of expression is among
the foremost of human rights. It is the communication and
practical application of individual freedom of thought. While
freedom of thought is a personal freedom, freedom of expression
is a collective freedom, whose character becomes more and more
pronounced as the technical methods of their diffusion multiply
and improve. Life, liberty and pursuit of happiness are the most
important inalienable rights according to the Declaration of
American Independence.
The right of speech is absolutely indispensable for the
preservation of a free society in which government is based upon
the consent of an informed is the word right citizenry and is
(b)
(c)
(d)
(e)
(f)
(g)
(2) Nothing in subclause (a) of clause (1) shall effect the operation
of any existing law, or prevent the State from making any law, in so
far as such law imposed reasonable restrictions on the exercise of
the right conferred by the said sub-clause in the interests of
sovereignty and integrity of India, the security of state, friendly
relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an
offence.
3.2. Article 19 and other Constitutions in the World
This article is similar to several Constitutions in the world.
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i.
Amendments
to
the
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to another. This means the State cannot make a law, which directly
restricts one freedom even for securing the better enjoyment of
another freedom. Thus the State cannot directly restrict one
freedom by placing on otherwise permissible restriction on
another freedom.17
The courts have to interpret the provisions of this Article 19 in
a manner, which would enable citizens to enjoy the rights
guaranteed by the Constitution in the fullest measure subject to
permissible restrictions. The rights of freedom guaranteed to the
citizens by Article 19 (1) are exercisable throughout and in all parts
of the territory of India.18 Article 19 refers to citizens only. Article
31 says that no person shall be deprived of his property save by
authority of law. A Hindu deity was held to be a juridical person
capable of owning and possessing property and so the trustee of
the deity can invoke Article 31 and not Article 19 as the Deity
cannot be called a citizen of India.19
A corporation which is a 'person' within the meaning of the
constitution by virtue of Section 3(42), General Clauses Act, read
with Article 367, is construed as a citizen and eligible for the rights
in Article 12(1).20
3.7. Interpretation of Media Freedom & Case Studies on
Media and Free Expression
Louis Brandeis J., of US Supreme Court, in his classic statement,
says that the Freedom of speech is bulwark of democratic
government21. Freedom of speech and expression means the right
to express ones convictions and opinions freely by word of mouth,
writing, pictures or any other mode. Courts in England, United
States of America and India have interpreted that this right
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An individual right of expression is guaranteed mainly for selffulfillment in all spheres of life and not only in matters of
governing importance in a democracy. In order that the governed
may form a wise and intelligent judgment and create an
enlightened public opinion it is necessary that the people must be
informed of all the aspects of a question and, therefore public
discussion assumes the nature of a public duty. In a democracy the
right to free expression is not intended to define an individual
right but rather a right of the community to be hared and be
informed.
In Himmatlal K. Shah v. Commissioner of Police25, a person
sought permission to hold a public meeting in connection with an
all-India students strike. The permission was refused but he
Commissioner of Police on grounds of apprehension of law and
order disturbance. The Commissioner relied on the notification
and rules regarding processions and public meetings issued under
the Bombay Police Act, 1951. The appellant challenged the
constitutionality of the Statutory provisions and the powers therein
as being discriminatory and imposing unreasonable restrictions on
his constitutional right to freedom of speech and expression and
right to assemble peaceably and without arms under
Article 19(1) (a) and (b).
Justice K K Mathew allowed the appeal and nullified the refusal
orders of the police commissioner as violative of Article 19(1) (a)
and (b). Public processions are prima facie legal. If a, b and c have
each a right to pass and repass on the high way, there is nothing
illegal in their doing so in concert, unless the procession is illegal
on some other ground. In Lowdens v. Keaveney, Gibson J., said that
a procession is prima facie legal and that it differs from the
collection of a stationary crowd but that a procession may
become a nuisance if the right is exercised unreasonably or with
reckless disregard of the rights of others.
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(Cross-Roads
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This case and the Cross-Roads case were disposed off by the
common judgment. In this case the East Punjab Safety Act 1940
authorized the Government to take action necessary for the
purpose of preventing any activities prejudicial to the public safety
or the maintenance of public order. This was challenged as
unconstitutional. Supreme Court agreed with the contention and
held that the relevant provisions of 1940 Act as unconstitutional
because the grounds of public safety and maintenance of public
order were not available under Article 19(2).
Following the decision of the Supreme Court in Romesh
Thapper (Cross-Roads) and Brij Bhushan (Organiser) cases, many
High Courts in our country pronounced decisions to the effect that
even incitement to individual murder or promoting disaffection
amongst classes could not be restricted under the permissive
limits set in Article 19(2). The interpretation given by the Supreme
Court in these two cases just after the coming into being of the
Constitution was misunderstood and misapplied which the
Supreme Court noted with regrets in State of Bihar v. Shailbala
referred below.
3.12.3. State of Bihar v. Shailabala Devi,36
The state ordered the keeper of the Bharathi Press to furnish a
security in the sum of Rs 2000 on the ground that the pamphlet entitled
Sangram printed by it contained objectionable matter punishable under
Section 4(1) of the Indian Press (Emergency Powers) Act, 1931. It was
challenged as violative of freedom guaranteed by the Constitution.
Supreme Court held that the pamphlet did not come within the mischief
of Section 4 as it merely contained empty slogans carrying no particular
meaning except some amount of figurative expressions or language
borrowed at random various authors. The Supreme Court also observed
that in order to determine whether a particular document was within the
ambit of Section 4(1) the writing has to be considered as a whole in a
fair, free and liberal spirit, not dwelling too much on isolated passages or
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upon a strong word here and there and an endeavour should be made
to gather the general effect which the whole composition would have on
the minds of the people.
The alarming situation arising out of the judgments of the Supreme
Court in Organizer and cross Roads necessitated the Government to
come forward with an amendment of Article 19(2) so as to restrict liberal
interoperation given by the supreme Court. Additional grounds of (a)
friendly relations with foreign States, (b) public orders and (c) incitement
to an offence were added by the First Amendment to the Constitution.
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Blackstone, Commentaries on the laws of England (1765; 4th Ed. 1770 in 4 volumes)
Book 4 Chap II 151-152.
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Pattern v. Colarado, 305 US 454, 462
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held in the Tata Press case that the people have right to listen and
receive the commercial speech.
3.17. Freedom of Expression & Electronic Media
In Life Insurance Corporation of India v Manubhai D. Shah52,
the Supreme Court held that the words freedom of speech and
expression have to be broadly construed to include the freedom
to circulate ones views by words of mouth, or in writing or
through audio visual instrumentality. Thus electronic media which
broadcasts and telecasts the information is also included in the
broad spectrum of freedom of expression.
A public interest litigation under Article 226 was filed to
restrain the authorities from telecasting the serial Honi Anhoni on
the ground that it was likely to spread false and blind beliefs and
superstition amongst the members of the public. The High Court
of Bombay granted a temporary injunction. The matter came up
before the Supreme Court by special leave under Article 136 of the
Constitution. The Supreme Court53 held that the order of
injunction granted was improper as the respondent has failed to
produce any material apart from his own statements to show that
the exhibition of the serial was prima facie prejudicial to the
community as such the issue of order of injunction would infringe
a fundamental right of the producer of the serial.
Our Constitution forbids monopoly of either the print or
electronic media. The airwaves are a public property and hence are
owned and controlled by the Government or a central national
authority or they are not available on account of scarcity, costs and
competition. It is a built-in limitation on the use of electronic
media as it involves use of airwaves, which is a public property. A
citizen has fundamental right to use the best means of imparting
and receiving information and as such to have an access of
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airways must be used for the public good because they were the
property of the members of general public. Justice B.P. Jeevan
Reddy suggested relevant amendments to a century old Indian
Telegraph Act as there was tremendous change due to scientific
and technological advancement in the field of communication.
3.17.3. Censorship of films:
i) K. A. Abbas v Union of India
In K. A. Abbas v Union of India56 the censorship of films was
challenged as unreasonable restriction over freedom of expression.
Supreme Court upheld the censorship of the films on the ground
the films have to be treated differently from other form of art and
expression as the motion picture is able to stir up the emotions
more deeply than any other form of art and censorship of the films
on any of the grounds mentioned in Article 19(2) is justified.
The Supreme Court justified the pre-censorship of films under
Article 19(2) on the grounds that films have to be treated
separately from other forms of Article and expression because a
motion picture was able to stir up emotions more deeply than any
other product of Article. The classification of films between
categories like "A" (for Adults only) and "U" (for all), was held to be
valid in K.A.Abbas. v. Union of India.57 This position remained
unaltered.
3.17.4. Bandit Queen Case
A citizen Om Pal Singh Hoon asked the court to quash the
certificate of exhibition given to the film "Bandit Queen" and to
restrain its exhibition in India. The petitioner contended that the
depiction of the life story of Phoolan Devi in this film was
"abhorrent and unconscionable and a slur on the womanhood of
India". He also questioned the way and manner in which the rape
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(1996) 4 SCC 1
Supra note 10 (1995) 2 SCC 161
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