Freedom of press and its limitations: where do we draw the line?

INTRODUCTION

Press as we all know is a source of communication of news and the know-how of the work happening in the country or even the world at large. For a country like ours that follows democracy, the press is given enough freedom to criticise and cover news over the government and its people. But however large a freedom that can be provided, it is also essential to have a regulation in place, a form of prevention or restriction that needs to be placed on the said freedom that has been provided to the press. This paper deals in detail on where to draw the line between such a freedom and its said limitations.


FREEDOM OF PRESS

Jawahar Lal Nehru once echoed his views on the freedom of press, saying, “I would rather have a completely free press, with all the dangers involved in the wrongful use of that freedom, than a suppressed or regulated press.”


The freedom of press has been widely interpreted to be a part of the fundamental rights guaranteed in the Indian Constitution by way of Article 19.

Article 19 deals with the freedom of speech and expression that has been guaranteed to the people of India, what is included and what isn't.


“19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression”[1];


In Article 19(1)(a) of the Constitution, as we can see, only freedom of speech and expression is given, and the freedom of press is not explicitly mentioned in it. However, in the Constituent Assembly Debates, Dr. Ambedkar had explained that no explicit mention of the freedom of press was deemed necessary as the press and an ordinary citizen, when the right to freedom of expression was concerned, were the same[2].


In Romesh Thaper vs State of Madras[3]The Supreme Court explained that freedom of speech and expression included propagation of ideas, and that such freedom was ensured by the freedom of circulation. It was a case where a particular legislation was questioned to be against the freedom of speech and expression, and doctrine of severability was adopted to conclude that the impugned legislation is, in fact, violative and hence repealed.


In Indian Express Newspapers v/s Union of India[4], it was held that the press plays a very significant role in maintaining democracy. The courts hence have the duty to strongly uphold the said freedom of press.


The apex court held in Union of India v. Assn. for Democratic Reforms[5] that:

“One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce."

"Freedom of speech and expression includes the right to impart and receive information which includes freedom to hold opinions.”


LIMITATIONS ON FREEDOM OF PRESS


Article 19(2) in The Constitution Of India 1949:

“(2) Nothing in sub clause (a) of clause ( 1 ) shall affect 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 right conferred by the said sub clause in the interests of the sovereignty and integrity of India, 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”[6]


And hence, while discussing the freedom of press, the major three limitations that are thereby imposed on the journalists are - defamation, sedition and obscenity, each of which we’ll be seeing in detail.


DEFAMATION

As per the definition of the term “defamation” in indian penal code, it is:

“Whoever by words either spoken or written, intended to be read, by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such person, is said, except in cases hereinafter excepted, to defame that person.”

A journalist who defames a person can be held liable in a civil or and as well as a criminal case.

From the said definition, the ingredients of defamation are:

- It must be written, or verbally said

- There is intention to harm the defamed person

- Publishing the defamed material to the public


WRITTEN OR VERBALLY SAID

Defamation can be of two types- one that is in a permanent form (written,printed and/or published), which is called libel, and the other that is verbally said by way of words and gestures, which is called slander.

Under indian law, no distinction is made with respect to libel or slander when it comes to deciding cases. Both of them are considered as crimes under Section 499 of the Indian Penal Code.

In the Arundhati Roy[7] defamation and contempt of court case, that the Supreme Court took up a suo moto contempt proceeding, the popular author was held guilty for contempt of court and was sentenced to one day symbolic imprisonment plus fine. The court held that freedom of speech is subject to reasonable restrictions. Attempting to lower the reputation of the judiciary is not judicial criticism and that the respondent did not act like any other ‘reasonable man’in the situation.


PUBLISHING OF SUCH MATERIAL

When it comes to the working of a press, the publisher of the newspaper would be held responsible for the defamatory statement irrespective of his knowledge about the existence of such a statement or not.

The editor, too, will be held responsible even if it’s not them who wrote it (Balasubramania Mudaliar V. Rajagopalachariar). It is the primary responsibility of the editor to ensure such defamatory content doesn’t exist in the produced work, unless and until they can prove that the incident happened in their absence, which was held in Ramaswamy V. Lokananda.


INTENTION TO HARM

For an act to be considered a crime, the existence of malice proves essential.

But in the case of defamation, it is usually held by the courts that it is actually not necessary for there to exist a malicious intent to harm the reputation of the other person when the defamatory statement gets published.


The House of Lords in E. Hulton and Co. v. Jones[8], held that, if the respondent has actually been defamed, the intention is not a test for liability.

The same was also held in T.V. Ramasubba Iyer And Anr. vs A.M. Ahamed Mohideen[9] on 6 September, 1971 where the test for existence of malice was considered immaterial to the case.


SEDITION

Sedition is an act of publishing statement(s) in an attempt to bring hatred towards the government and thereby cause distress in the community.

In simple words, sedition is defamation against the State.

Section 124A of the Indian Penal Code explains the meaning of sedition.


In the widely popular Kedar Nath v. State of Bihar[10],

The constitutional validity of the provision 124A was deliberated by the supreme court. It dealt with the distinction between a mere spread of disaffection or enmity from that of one which does or attempts to incite violence. Mere disaffection or sharing of opinion without any malicious intent cannot be treated as sedition.

This case was also cited in the judgement while discussing the recent Vinod Dua sedition case[11].


In the Balagangadhar Tilak case[12], when the weekly Bengali newspaper published an article of his, he was charged with section 124-A and 500 of IPC. It was held that anyone can choose to provide political views, but it shall be done with proper restraint and due regard to law.


OBSCENITY

Obscenity is punished under Section 292 of the Indian Penal Code, where it prohibits publishing obscene, unappealing, prurient content for the public to see, read or hear.

Obscenity can mean anything that is offensive to chastity or modesty, something that is too intimate and delicate that is prohibited from being shared publicly, which goes against ‘decency or morality and public order’.


The Hicklin Test:

This first originated in the case Queen v. Hocklin[13], where they applied the Hicklin test to determine obscenity. This test provides that, it must be decided after taking into account the facts and circumstances of each case on whether in the present context the act can be held to be obscene or not.


This test was used to determine the question of obscenity in the case Ranjit D. Udeshi v. State of Maharashtra[14].

Facts: Ranjit D. Udeshi was prosecuted for selling copies of a book which was alleged to be containing obscene content. It was argued that the Section 292 is violative of the freedom of speech of expression guaranteed in Article 19(1) of the Constitution and that the book is not obscene if considered as a whole.

The court examined the book and held it to be obscene under Hicklin. The appeal was also, hence, dismissed.


In Samaresh Bose v. Amal Mitra[15], the Supreme Court took the intention of the writer into consideration and held,

"If a mere reference to sex is enough to consider a book as obscene and unfit for adolescents to read, adolescents will have no option of reading any book and will have to settle for “books which are purely religious”

The court considered the point of view of the author and concluded that though this book contains references to sex, descriptions of female bodies or vulgar languages, it also on a larger scale has dealt with evils in the society and hence is not obscene.


SOCIAL MEDIA AND FREEDOM OF SPEECH AND EXPRESSION

Social media is an upcoming and a much delightful platform on the internet, that helps people from all corners of the world to connect and socialise with each other in great ease. You can share your desires, opinions, showcase your talents and interact with millions of people, all at the comfort of your home, without having to move an inch.

The opportunities are limitless. There is nothing that cannot be done on the internet. Yes, that includes the negative facets of the internet too. From hacking to catfishing, there are a boundless amount of offences that are being committed every second. Right to privacy has become a myth. Checking whether a news article is reliable or is just fake news has become highly tedious.

There hence arises a need for a well structured legislation just to regulate the workings of such social media internet platforms.

Although there have been many amendments to major legislations to include crimes happening on the internet and also legislations originated like the Information Technology Act, 2000 which deals with regulation of offences committed on the internet or using a computer source, and others, the necessity for a detailed law over these ever expanding social media crimes need to be met with on our country.


THE NEW GUIDELINES INTRODUCED TO SOCIAL MEDIA GIANTS BY THE INDIAN GOVERNMENT

Major social media players in India like Facebook, Whatsapp and Twitter, were made subject to new guidelines introduced by the Indian Government, and requested them to accept the same.

The guidelines, called ‘The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021’ were introduced as a way to curb the spread of fake news, and other unlawful usages of the internet.

The major pointers of the guidelines are:

- To aid in tracing the first originator of an unlawful/fake message.[16]

- To disable or remove unlawful information from the social media site as early as possible right after intimation of the same.

- to publish a monthly compliance report mentioning details of complaints received and action taken on the complaints as well as details of contents removed proactively.[17]

- To establish local offices staffed with senior officials to deal with law enforcement and user grievances.[18]



CONCLUSION

For a nation to cherish, the people must know everything that is happening, without any prejudice affecting the information provided.

A well running press that is a trustable source among the people is essential not only to the people but also in a way to the government too, as it ensures smooth running of the administration.

However, there are plenty of opportunities for the same freedom to be exploited negatively by a few. This is the reason why a well developed restriction needs to be put up in place, a way of ensuring that the strong line drawn does not in any way compromise the freedom guaranteed already. If the press works ethically and with regards to the due process of law, they have nothing to worry about.


SOURCES

  1. http://www.legalservicesindia.com/article/1847/Freedom-of-Press---Article-19(1)(a).html [last visited - 23/07/2021, 19:02 pm]

  2. http://nalsarpro.org/Portals/23/2_%20Media%20Law%20Paper%202_1.pdf [last visited - 22/07/2021, 11:20 am]

  3. https://globalfreedomofexpression.columbia.edu/cases/ [last visited - 23/07/2021, 19:10 pm]

  4. https://indiankanoon.org/ [last visited - 23/07/2021, 19:23]

  5. https://blog.ipleaders.in/defamation-and-its-essentials/ [last visited - 22/07/2021, 11 am]

  6. https://www.google.com/amp/s/indianexpress.com/article/explained/explained-kedar-nath-singh-judgment-the-1962-verdict-sc-quoted-in-vinod-dua-sedition-case-7343003/lite/ [last visited - 23/07/2021, 19:15 pm]

[1] The Constitution of India, 1949. https://indiankanoon.org/doc/1218090/ [2] Freedom of Press - Article 19(1)(a).html last visited - 23/07/2021 [19:02 pm] [3] 1950 AIR 124, 1950 SCR 594 [4] (1985) 2 S.C.R. 287 [5] (SCC p. 317, para 38) [6] The Constitution of India, 1949. https://indiankanoon.org/doc/1218090/ [7] (2002) 3 SCC 343 [8] 1910 AC 20 [9] AIR 1972 Mad 398 [10] 1962 Supp. (2) S.C.R. 769 [11] Vinod Dua V. Union Of India & Ors [WRIT PETITION (CRL.) NO.154 OF 2020] [12] (1897) 22 Bom 112 [13] Regina V. Hicklin [1868] LR 3 QB 360 [14] (1965) 1 S.C.R. 65 [15] AIR 1986 SC 967 [16] https://www.thehindu.com/news/national/govt-announces-new-social-media-rules/article33931290.ece last visited at 27/07/2021, 00:15 am [17] https://economictimes.indiatimes.com/news/economy/policy/aim-to-comply-with-indias-new-social-media-guidelines-facebook/articleshow/82933822.cms?from=mdr#:~:text=As%20per%20the%20guidelines%2C%20the,investigation%20and%20punishment%20of%20an last visited at 27/07/2021, 00:15 am [18] https://techwireasia.com/2021/06/indias-new-social-media-rules-explained/ last visited at 27/07/2021, 00:13 am


Submitted by,

Saismriti Girish,

School of Excellence in Law.