Freedom of press in India

According to the estimates of Reporters Without Borders, India ranks
120th 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 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 PoTA was repealed in 2006, but the Official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.
Organizations 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.

Constitutional law

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
provide 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 law 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, CJ 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
: “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

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:1.
freedom of access to all sources of information,
2. freedom of publication, and
3. freedom of circulation.

In India, the press has not been able to exercise 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 Bennet 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 Court 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 plea of the
Government that it would help small newspapers to grow.

In Romesh Thapar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC
, 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.

Reasonable restrictions
The freedom of speech and of the press does not confer an absolute
right to express without any responsibility. Lord Denning, in his
famous book Road to Justice, observed that press is the watchdog to
see that every trial is conducted fairly, openly and above board, but
the watchdog may sometimes break loose and has to be punished for
misbehaviour. With the same token Clause (2) of Article 19 of the
Indian constitution enables the legislature to impose reasonable
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 W. B., 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
, 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.
, 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 The Lady Chatterley’s Lover.
The standard of morality varies from time to time and from place to

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 upheld the view taken by Frankfurter, J. in
Pennekamp v. Florida (328 US 331 : 90 L Ed 1295 (1946)) in which Judge
of the United States 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.

Incitement to an offence: 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 offence.

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.


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. Mere criticism of the government does not amount to
sedition, if it was not calculated to undermine the respect for the
government in such a way so as to make people cease to obey it and so
that only anarchy follows. 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 1952 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.

* Callamard, Dr. Agnes, Freedom of Speech and Offence: Why Blasphemy
Laws Are not the Appropriate Response, (18th June 2006), (as a pdf)
* Cohen, Henry, C.R.S. Report for Congress: Freedom of Speech and
Press: Exceptions to the First Amendment, (27th August 2003), ( as a pdf ).
* Liang, Lawrence, Reasonable Restrictions and Unreasonable Speech,
(2004), ( as a pdf ).
* Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central
Law Agency, Allahabad.
* Singh, M. P., Constitution of India, 10th ed. (2001), Eastern Book Co., Lko.
* Tiwari, Dr. Mahendra, Freedom of press in India: Constitutional
Perspectives, (2006),