Freedom of Media: A sacrosanct and Cherished Right

Freedom of speech and expression is a sacrosanct fundamental right of every India, and it cannot be compromised under any circumstances. It can, however, be restricted only in the cases as enumerated in the Constitution of India. This has again been reaffirmed by the recent Supreme Court judgement in ‘Yashwant Sinha and others vs Central Bureau of Investigation’, wherein all three judges have said in unison that the ‘freedom of the press has always been a cherished right in all democratic countries’. Here it is necessary to know the backdrop of the case. When the Rafale case was decided by the Supreme Court in December last year saying that no irregularities have been committed by the government in finalising the deal of the combat aircraft, which is so necessary for the defence of India. Most of the opposition parties were crying foul over the judgement by saying that the judgement of the Supreme Court has been procured by concealing many vital facts from it.

Thereafter a newspaper namely; ‘The Hindu’ published some stories, which it claims to be investigative, and which were based on the correspondences between the officials of the Defence Ministry and the Defence Minister. Although the letters were reproduced in the newspaper in truncated form and the noting of the Minister were not published. In their letter, the officials had alleged that the decision with regard to Rafael was being taken directly by the Prime Minister Office bypassing the Defence Ministry, which is against the established norms. The petitioners then filed a Review Petition in the light of the new facts, which have emerged after the publication of the stories in the ‘The Hindu’. The government objected to it by saying that no new documents can be added to the Review Petitions, that too when the veracity of the documents itself is doubtful. In the normal course, it is the practice but here the court allowed the clipping of the newspapers to go to the root of the truth.

But here what is important is that the Supreme Court has waxed eloquently about the freedom of media rather than the case. As a matter of fact, in the initial years of the Constitution of India freedom of the press was considered to be synonymous with the speech and expression. However, our Constitution makers were very clear about it that it is not confined only to the media but to every citizen. During the constituent assembly debates, one of the members said that freedom is attained at considerable sacrifices and sufferings. The leaders of the Indian independence movement attached special significance to the freedom of speech and expression, which included the freedom of the press. Pt. Jawahar Lal Nehru in his historic resolution containing the aims and objects of the constitution said that constitution should guarantee and secure to all the people of India, among others, freedom of thought and expression. His famous words were ‘I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed and regulated press’. Thus, the constituent assembly considered the freedom of speech and expression to be a precious right.

In Romesh Thappar vs State of Madras the Supreme Court had said that way back in 1950 that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2) and thereby made it clear that there could not be any interference with that freedom in the name of public interest. The reasonable restrictions under Article 19(2) serve a twofold purpose, viz; on the one hand, they specify that these freedoms are not absolute; on the other hand, they put a limitation on the power of the legislature to restrict these freedoms. Three significant characteristics of it are – the restrictions under this class can be imposed only by the authority of law. No restriction can be imposed by executive action alone. Each restriction must be reasonable, and it must be related to the purposes mentioned in Article 19(2).

So, the question comes what would be the test of the reasonableness? The first test is the sovereignty and integrity of India. No freedom can be given to anybody to attack it. The second test is the security of the state. It has got a much wider expression which includes economic security also. It has two facets; the security of the state, which consists of external and internal. The third test is friendly relations with foreign nations. No news or views can be published or broadcast which is based on fictitious and false facts with intents to vitiate the relationship with the friendly countries.

Another important test is the public order, an elemental need in any organised society which cannot flourish in the state of disorder. There is a number of cases which have been decided by the Hon’ble Supreme Court on this issue. Decency and morality are other criteria for imposing the restrictions because obscenity cannot be allowed in the name of freedom of speech and expression. Similarly, in the exercise of one’s right to freedom and expression nobody can be allowed to interfere with the due course of justice or to lower the prestige or the authority of the court. The contempt of Court cannot be allowed to go unpunished because that will be like creating hindrance in the way of free and fair justice. In this regard, the case of EMS Namboodiripad vs TN Nambiar is very relevant. Shri Namboodiripad, the Chief Minister of Kerala, was very critical of the judiciary and had said in many press conferences that judiciary was an instrument of oppression, which was taken to a contempt of court by the High Court which imposed a fine of Rs. 1,000/- and in default to undergo imprisonment of one month which was also upheld by the Supreme Court. But in the case of Shiv Shankar, who was the Law Minister of India, the same yardstick was not applied. He had said that ‘anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found haven in the Supreme Court.’ This was an open contempt to the court by lowering down its majesty, but he was allowed to go scot free.

Apart from it, the other restriction is that freedom does not give the right to defame anybody or to incite any offence in society. The last but not the least is the sedition which has been prohibited under the law. However, the last restriction imposed in the name of the sedition is a matter of debate and there is a large number of intellectuals who feel that this provision must go. As a matter of fact, the settled law is that the confidential papers have been granted immunity from disclosure, not because of their contents but, because of the class to which they belong. This class includes Cabinet Minutes, Minutes of Discussion between heads of departments, High-Level interdepartmental communications and dispatches from Ambassadors abroad. In the famous S.P. Gupta’s case, the Supreme Court had said ‘that candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class. The English Judge Lord Reid has said in Conway vs Rimmer case that the court has to strike a balance between the detriment to the public interest on the administrative or executive side and detriment to the public interest on the judicial side. The words of the famous Jurist H.M. Seerwai will always ring true that ‘more stringent restrictions are necessary in the interest of public order because no freedom can survive without it’.

Freedom of speech and expression also works as a window to see what is happening in the outside world and also to bring a breeze of the fresh air inside the house. Till now we have been getting decisions and judgements from the Supreme Court only in the name of freedom of speech and expression, which has mainly remained confined to the freedom of the press but now in the light of the metamorphic changes in the world of media, the scope of the judgements will have to be expanded to include the audio-visual media, web and social media. In the present circumstances, it is the social media which has overtaken the other streams of the media. In fact, it has given freedom to every citizen of the country in the real sense of the term. Earlier, those who have been associated with the newspapers or televisions have been getting access, but others had virtually no say in it. However, with the advent of the social media, every individual has got access to the means of communication to disseminate his or her own views, ideas and the news, which was almost impossible in the other forms of the media. It is also true that while social media is within the reach of everybody and there are innumerable advantages to its use, but the disadvantages are equally fatal because the chances of its misuse are far more than benefits.