MEDIA LAW:

Freedom of Press under the Constitution of India and USA

SUBMITTED BY: SUBMITTED TO:

MIHIR SINGH MR. PIYUSH KUMAR
1120202174 ASSISTANT PROFESSOR OF
LAW
BBA LLB
HIMACHAL PRADESH
8th SEMESTER
NATIONAL LAW
UNIVERSITY, SHIMLA.
 DECLARATION

I hereby declare that the assignment entitled “Freedom of Press under the Constitution of
India and USA” submitted by me to Himachal Pradesh National Law University, Shimla is a
record of Bonafede project work carried out by me, Mihir Singh, under the guidance of Mr.
Piyush Kumar. I further declare that the work reported in this project has not been submitted
and will not be submitted, either in part or in full, for the award of any other degree or
diploma in this institute or any other institute or university.

Mihir Singh

Date: 06-05-2024
INTRODUCTION

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of the liberty, it is truly said about the freedom of speech
that it is the mother of all other liberties. Freedom of Speech and expression means the right
to express one's own convictions and opinions freely by words of mouth, writing, printing,
pictures, or any other mode. In modern time it is widely accepted that the right to freedom of
speech is the essence of free society, and it must be safeguarded at all times. The first
principle of a free society is an untrammelled flow of words in an open forum. Liberty to
express opinions and ideas without hindrance, and especially without fear of punishment
plays significant role in the development of that particular society and ultimately for that
state. It is one of the most important fundamental liberties guaranteed against state
suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but
also by various international conventions like Universal Declaration of Human Rights,
European convention on Human Rights and fundamental freedoms, International Covenant
on Civil and Political Rights etc. These declarations expressly talk about protection of
freedom of speech and expression.

To preserve the democratic way of life it is essential that people should have the freedom to
express their feelings and to make their views known to the people at large. The press, a
powerful medium of mass communication, should be free to play its role in building a strong
viable society. Denial of freedom of the press to citizens would necessarily undermine the
power to influence public opinion and be counter to democracy. Freedom of Press has been
recognised in Article 19 of the Universal Declaration of Human Rights, 1948; Article 19 of
the International Covenant on Civil and Political Rights, 1976 as well as article 10 of the
European Convention on Human Rights.

Freedom of press is not specifically mentioned in article 19(1) (a) of the Constitution of India
and what is mentioned there is only freedom of speech and expression. In the Constituent
Assembly Debates it was made clear by Dr. Ambedkar, Chairman of the Drafting Committee,
that no special mention of the freedom of press was necessary at all as the press and an
individual or a citizen were the same as far as their right of expression was concerned.
The framers of the Indian constitution considered freedom of the press as an essential part of
the freedom of speech and expression as guaranteed in Article 19 (1) (a) of the Constitution.
The freedom includes the right to express one’s conviction and opinions freely, by word of
mouth, writing, printing, picture, or electronic media or in any other manner.

It is clear that the right to freedom of speech and expression carries with it the right to publish
and circulate one’s ideas, opinions and other views with complete freedom and by resorting
to all available means of publication. The right to freedom of the press includes the right to
propagate ideas and views and to publish and circulate them. However, the freedom of the
press is not absolute, just as the freedom of expression is not.

FREEDOM OF PRESS IN INDIA AND USA

India

"Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and impart information and ideas through any media
regardless of frontiers"1. Freedom of speech and expression means the right to express one’s
own convictions and opinions freely by means of mouth, writing, printing pictures or any
other mode. It thus includes the expression of one’s ideas through any communicable
medium or visible representation, such as gesture, signs. It refers to the right to print, publish,
disseminate, circulate, and distribute publications without any interference from the state or
any other public authority.

Freedom of press is implicit in Article 19(1) (a) of the Constitution of India. However, this
Freedom, like any other freedoms, is not absolute and is subject to well-known exceptions in
the public interests. Press generally refers to the newspaper industry. But in the modern era,
besides newspapers, there are various forms of news media that includes television, radio
broadcasting and online news websites.2

Freedom of expression has four broad purposes to serve:

 It helps an individual to attain self-fulfilment.

1
The United Nations 1948, Universal Declaration of Human Rights.
2
M.P Jain, Indian Constitutional Law, 7th edition, page- 231.
  It assists in the discovery of truth.
 It strengthens the capacity of an individual in participating in decision making.
 It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.

In the Romesh Thappar3 case the court laid down an important principle:

So long as the possibility of the law being applied for purposes not sanctioned by the
Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In
other words, Clause 2 of Art 19 having allowed the imposition of restrictions on the freedom
of speech and expression only in cases where danger to public security is involved, an
enactment which is capable of being applied to cases where no such danger could arise,
cannot be held to be unconstitutional and valid to any extent.

In Indian Express Newspapers v/s Union of India4, 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
3. Freedom of circulation

Art 19(2) was subsequently amended by the Constitution (First Amendment) Act, 1951,
which was enacted with retrospective effect on 18 June 1951. Art 19(2) was subsequently
amended by the Constitution (Sixteenth Amendment) Act, which was enacted with
prospective.

Justice Jeevan Reddy and Justice B.N. Hansaria in the Printers (Mysore) Limited v. State of
Karnataka5 stated that “freedom of press has always been a cherished right in all democratic
countries. The democratic credentials of a State are judged today by the extent of freedom the
press enjoys in that state.”6 Press, and media serves as an agency of the people; bringing
forward the real picture of the society. Hence the freedom of press and media is a necessary
pre-requisite in fulfilling the democratic ideologies.

3
AIR 1950 SC 124.
4
AIR 1958 SC 578
5
1994 SCC (2) 434
6
A.I.R 1994 S.C 23
Besides, a free and vigilant press is vital to prevent corruption and injustice, at least to the
extent that public opinion can be aroused as a consequence of press investigations and
comments. In fact, the main purpose of the free press is to create a fourth institution outside
the government to serve as an additional check on the three organs of government namely
executive, legislative and judiciary.

Issues relating to Freedom of Press:

1. Fixation of Maximum Pages: In Bennet Coleman Co. vs. UOI7 (1973) the validity of
the Newsprint Control Order, 1962 which fixed the maximum number of pages at 10
which a newspaper could publish was challenged as violative of fundamental rights
guaranteed under Article 19(1)(a) and Article 14 of the Constitution. The court has
held that the Government can make a fair and equitable allotment of the available
newsprint to the newspapers but once the allotments are made newspapers must be
left free to determine how they will adjust their newsprint. Hence it has been made
clear that the fixation of maximum number of pages of newspapers by the
Government is against the freedom of press guaranteed by Article 19(1)(a).

2. Fixation of minimum price according to number of pages: In Sakal Paper Ltd. vs.
Union of India8 (1962) an order which fixed a minimum price and number of pages
which a newspaper was entitled to publish was challenged as unconstitutional on the
ground that it infringed the liberty of press guaranteed under Article 19(1)(a). the
court has made it clear that the only restrictions which may be imposed on this right
are those which clause (2) of Article 19 permits. Accordingly, the court has held that
fixing fixed a minimum price and number of pages which a newspaper was entitled to
publish was unconstitutional as being in violation of Article 19(1)(a).

3. Levy of duty or tax on Newspaper Industry: In Indian Express Newspaper vs.

UOI (1985) the petitioner challenged the imposition of import duty and the levy of
auxiliary duty on the newsprint on the ground of infringement of the freedom of press
as it imposed a burden beyond the capacity of the industry and also affects the
circulation of the newspapers and periodicals. The SC has held that the newspaper has

7
1973 SCC OnLine Bom 41
8
AIR 1962 SC 305
 no immunity from general laws like taxation or labour laws. The levy of duty or tax
on the newspaper industry will be valid if it is within reasonable limit.

4. Regulation of conditions of service of workmen in Newspaper Industry: In Express

Newspapers Ltd. vs. UOI (1958) the validity of the regulation of conditions of service
of workmen in newspaper industry through Working Journalists Act, 1955 was
challenged. The court has held that the object of the Act was the amelioration of the
conditions of the workmen in the newspaper industry. The court has made it clear that
the press has no immunity from general laws like taxation or industrial laws
consequently, the court has held that the act is valid.

5. Commercial Advertisement: In Hindustan Times vs. State of UP (2003) it has been

held that advertisement has direct nexus with circulation and revenue of newspaper
and therefore the Government cannot impose an unjust condition in the matter of
release of advertisements.

6. Pre-censorship: Imposition of pre-censorship on a journal or newspaper previous to its

publications is a restriction on the freedom of press and will amount to an
infringement of the freedom of speech and expression guaranteed by Article 19(1)(a).
However, the pre-censorship may be valid if it can be justified on any ground of
reasonable restriction permitted by Article 19(2).
In Express Newspapers Ltd. vs. UOI (1958) the SC held that a law which imposes
pre-censorship or curtails the circulation or prevents from being started or require the
Government to seek Government aid in order to survive was violative of Article 19(1)
(a).

UNITED STATES OF AMERICA

The First Amendment to the Constitution of the USA has expressly recognised the freedom
of press. In the United States, the government may not prevent the publication of a
newspaper, even when there is reason to believe that it is about to reveal information that will
endanger national security. By the same principle, the government cannot:

 Pass a law that requires newspapers to publish information against their will.
  Impose criminal penalties, or civil damages, on the publication of truthful information
about a matter of public concern or even on the dissemination of false and damaging
information about a public person except in rare instances.
 Impose taxes on the press that it does not levy on other businesses.
 Compel journalists to reveal, in most circumstances, the identities of their sources.
 Prohibit the press from attending judicial proceedings and thereafter informing the
public about them.

The above defined bundle of rights was largely developed by U.S. Supreme Court decisions,
defines the “freedom of the press” guaranteed by the First Amendment.

In Lowell vs. Griffin (1938) the US court has observed that the freedom of press is not
confined to newspapers and periodicals, but it also includes pamphlets and circulars and
every sort of publication which affords a vehicle of information and opinion.

ANALYSIS OF INDIAN AND AMERICAN LEGAL SYSTEMS

Two great democracies of the modern world, America and India doing poetic justice has
recognized the right of freedom of speech and expression which extends to the freedom of the
Press. The provision with regard to this freedom is quite similar in both legal systems, that
being said, the freedom of the Press in the US constitution has two positive features, that is:

 Freedom of press is specifically mentioned therein.

 No restrictions are mentioned on the freedom of speech.

With respect to India, the Apex Court of India has held that there is no specific provision
ensuring freedom of the press separately, but this freedom of the press is regarded as a
“species of which freedom of expression is a genus”.

Therefore, press cannot be subjected to any special restrictions which could not be imposed
on any private citizen and cannot claim any privilege (unless conferred specifically by law),
as such, as distinct from those of any other citizen. Despite similarities in their constitutional
provisions, the United States and India have their own distinctive jurisprudence on freedom
of speech. To add to that, they also differ in what actually includes and is accepted as free
speech.
The premier difference among the systems is the extent of the freedom, the US legal system
gives the Press absolute freedom whereas in India is more of a right which extends to certain
levels and the restrictions are well defined. This difference is attributable to the reasonable
restrictions provision and the moral standard of the communities. India has progressed from
an authoritarian system of control and is now attempting a legislative model of control, quite
similar to that of the United States. The consequence of the extent of the Freedom in the US
constitution is that ideas or expression which may be offensive or hurtful or even racial can
be expressed freely. The constitutional guarantee of freedom of expression under the First
Amendment then means freedom of expression in the fullest sense.

Whereas the freedom of press in the Indian Constitution is subject to the restrictions stated in
Article 19(2). Although the Constitution shows has no special provision to safeguard the
rights of the press, the Indian Judiciary has taken up the role and confirmed that the rights of
the press are implicit in the guarantee of freedom of speech and expression under Article
19(1)(a) of the Constitution. In fact, multiple judgments of the Supreme Court of India have
struck down laws that abridge the freedom of the press and have echoed the sentiment
expressed in the First Amendment of the US constitution.

In Brij Bhushan vs. State of Delhi (1950) the SC has observed that the fundamental freedom
of speech and expression enshrined in our constitution was based on the provisions to the
First Amendment of the Constitution of the USA.

CONCLUSION

Press is considered the watchdog of democracy. The Two big democracies of world have
remarkably protected this right. As far as India is concerned, this important right is mentioned
in Article 19(1) (a), which falls in fundamental right category. Indian courts have always
placed a broad interpretation on the value and content of Article 19(1) (a), making it
subjective only to the restrictions permissible under Article 19(2).

The United States has a complex First Amendment jurisprudence that varies the protection
offered free speech according to form. Similarly, India developed its own free speech
jurisprudence that applies a reasonable restrictions test based on eight mentioned restrictions.
The real difference in freedom of speech enjoyed in the United States and India is a question
of degree. This difference in degree is attributable to the reasonable restrictions provision and
the moral standard of the communities.

In 1975's Cox Broadcasting Corp. v. Cohn9, the Court has expressly recognized the structural
role that the press plays as a “surrogate” for the larger public in gathering and disseminating
information on its behalf and for its benefit. With respect to the above case, it is safe to say
that Press is considered the watchdog of democracy. The Two big democracies of world have
remarkably protected this right.

As far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls
in fundamental right category. Indian courts have always placed a broad interpretation on the
value and content of Article 19(1) (a), making it subjective only to the restrictions
permissible under Article 19(2). The United States has a complex First Amendment
jurisprudence that varies the protection offered free speech according to form. Similarly,
India developed its own free speech jurisprudence that applies a "reasonable restrictions" test
based on eight mentioned restrictions. The real difference in freedom of speech enjoyed in
the United States and India is a question of degree. This difference in degree is attributable to
the reasonable restrictions provision and the moral standard of the communities.

9
420 U.S. 469 (1975)