The Constitution of India does not expressly confer any Fundamental Right on the Press as such. It is implicit in the freedom of expression which is conferred on all citizens. It follows that this freedom cannot be claimed by a newspaper or other publication.

The freedom of Press, under the Constitution, is not higher than the freedom of an ordinary citizen. It is subject to the same limitations as are imposed by Article 19(2) and to those limitations only. The Press is not, accordingly, immune from the ordinary forms of taxation, the application of the general law relating to industrial relations; the regulation of the conditions of service of the employees; liability for exceeding the limits of fair reporting and fair comment or to hold a trial by the Press under the law of defamation or contempt of court or the other Constitutional limitations under Article 19(2); the law of contempt of court; the regulation of the commercial activities of a newspaper, with interfering with its freedom of expression; and the law of privacy, subject to the conduct of public officials in the discharge of their official duties. Freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances as it would lead to disorder and anarchy.

The right to acquire information includes the right of access to the sources of information. Hence, a journalist cannot be denied an opportunity to interview a prisoner, provided the prisoner is willing to be interviewed, and (b) the regulations contained in the Jail Manual are complied with and permission of the trial court is obtained.

For rule of law and orderly society, a free responsible Press and an independent judiciary are both indispensable and must be protected. The court judgments are public documents and can be commented upon, analysed and criticised, but it has to be in a dignified manner without attributing motives. Before placing in front of the public, whether in print or electronic media, all concerned have to see whether any such criticism has crossed the limits; and if it has, then resist every temptation to make it public. While the media can, in public interest, resort to reasonable criticism of a judicial act for public good or report any such statements, it should refrain from casting scurrilous aspersions on or impute improper motives or personal bias to the judge. Judges do not defend their decisions in public. If citizens disrespect the person laying down the law, they cannot be expected to respect the law laid down by them. The only way the judge can defend a decision is by the reasoning in the decision itself; and it is certainly open to being criticised by anyone who thinks that it is erroneous.

Any restriction directly imposed upon the right to publish, to disseminate information or to circulate constitutes a restriction upon the freedom of the Press. The right to publish includes the right to publish not only its own views but also those of its correspondents. The right to circulate refers to the matter to be circulated as well as the volume of circulation.

It would not be legitimate for the State to subject the Press to the laws which abridge the freedom of expression or which would curtail circulation and thereby narrow the scope of dissemination of information or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid; to single out the Press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media; to impose a specific tax upon the Press deliberately calculated to limit the circulation of information; and to require the newspapers either to reduce the number of their pages or to raise their prices, according to a schedule prescribed by the State, on some ground extraneous to Cl.(2), e.g., the elimination of unfair competition amongst newspapers, or to fix a maximum page level.

It would however be open to the State to restrict the commercial activities of a newspaper in the public interest, in so far as that can be done without restricting the freedom of expression or circulation of a newspaper. Thus, the right to publish an advertisement is not part of the freedom of expression; but if a restraint on advertisement curtails circulation, it would offend Article 19(1)(a). The freedom of expression of the Press cannot be abridged on the ground of conferring benefit upon the public.

Prior to the First Amendment Act, 1951, the words ‘reasonable restriction’ did not exist in Article 19(2). Hence in the earlier cases, it was held that pre-censorship or any form of previous restraint on the freedom of expression or the Press prima facie constituted an infringement of the right guaranteed by Article 19(1).

The amendment, however, empowered the court to adjudge the reasonableness of a restriction imposed even on the right guaranteed by Article 19(1)(a) and such restriction could be struck down only if it was unreasonable. This change in the law was acted upon the Supreme Court in Virendra Vs State of Punjab, and Babulal Vs State of Maharashtra. In these cases, it has been held that anticipatory action may be reasonable in emergent circumstances, e.g., to prevent a breach of peace.

Whether it would be unreasonable in given circumstances would have to be determined applying the various tests of urgency, duration, nature of the publications affected and the like. For example, S.3(1) of the Punjab Special Powers (Press) Act, 1956, provided, “The State Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, may by notification, prohibit the bringing into Punjab of any newspapers, periodical, leaflet or other publication”.

The Supreme Court invalidated the above provision on the ground that it was unreasonable both from the substantive and procedural points of view. It was held to be substantively objectionable as no limitation was imposed either as to the duration of the ban or importation authorised by the provision or as to the subject-matter of the publication.

It extended to any publication and might be of an indefinite or unlimited duration. Procedurally, again, it placed the publication and might be of an indefinite or unlimited duration. Procedurally, again, it placed the whole matter at the subjective determination of the Government; and there was no provision even for any representation of the party affected. It, thus, offended against the rules of natural justice. At the same time, the court upheld the validity of another section of the same Act [S.2(1)(a)], which was not lacking in the above respects.

In short, to prevent a breach of peace during a period of emergency (such as communal agitation), temporary restrictions may also be imposed on publication of a specified class of matter in a newspaper provided the rules of natural justice are complied with. Similar are the reasonable restrictions under Ss.144 and 95 of the Code of Criminal Procedure.

Freedom of Press is zealously guarded by any civilised society and is one of the pillars on which the edifice of democracy rests. Of late, there have been attempts at terrorising journalists. State hostility is another aspect that has bothered the Press. All need to engage themselves for protection of the freedom of the Press.

(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)

Freedom of Press must be protected at all costs