Brainwave
HUMAN RIGHTS AND JOURNALISM
by Rahul Varshney,
Indian
Institute of Technology, Kanpur
It is clear that the right of freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to any available means of publications subject: again to such restrictions as could be legitimately imposed under Article 19(2) of the Constitution. Imposition of pre-censorship criticized by the Courts as unreasonable restrictions on the liberty of the press which is included in Article 19(1)(a) of the Constitution.—M. Hasan v. Govt. of A.P., AIR 1998 AP 35 at 41.
“Printed book including those in lose leaf form with binder”. Merely by reason of the factum of certain writings on various sheets of papers one cannot ascribe the documentation to be a ‘book’. The word ‘book’ has not been defined in the Act but the ‘book’ in common acceptation is a literary composition from which one may extend or advance his or her knowledge and learning.—Commissioner of Customs, New Delhi v. Parasampuria Synthetics Ltd., AIR 2001 SC 3501.
The expression “freedom of press” in Article 19 of the Constitution of India but it is declared by this Court that it is included in Article 19(1)(a) which guarantees freedom of speech and expression.—Brij Bhushan v. State of Delhi, AIR 1950 SC 129 : 1950 SCR 605; Benett Coleman & Co. v. Union of India, AIR 1973 SC 106 : (1973) 2 SCR 757.
No absolute right of freedom of speech and expression has been conferred by the Indian Constitution as enshrined by the first amendment to the American Constitution. Though the Indian Constitution does not use the expression “freedom of press” in Article 19 of the Constitution, but it is included in one of the guarantees in Article 19(1)(a) of the Constitution.—Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Pvt. Ltd., Bombay, AIR 1989 SC 190 at 197.
While examining the constitutionality of a law which is alleged to contravene Article 19(1)(a) of the Constitution, the Apex Court cannot no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a democratic country the Apex Court may take them into consideration. The pattern of Article 19(1)(a) and of Article 19(1)(g) of the Constitution of India is different from the pattern of the first amendment to the American Constitution which is almost absolute in its terms. The right guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution are to be read along with clauses (2) and (6) of Article 19 of the Constitution which carve out areas in respect of which valid legislation can be made.—I.E. Newspapers Bombay Pvt. Ltd. v. Union of India, AIR 1986 SC 515 at 531.
In Indian Express Newspaper v. Union of India,—AIR 1986 SC 515 : (1985) 1 SCC 651. the Supreme Court, held that (para 39) :—
“Freedom of press presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. It rests on the assumption that the widest possible dissemination of information from as many diverse and antagonistic sources as possible is essential to the welfare of the public. It is the function of the press to dissematic news from as many different sources and with as many different facts and colours as possible. A citizen is entirely dependent on the press for the quality, proportion and extent of his news supply. In such a situation, the exclusive and continuous advocacy of one point of view, through the medium of a newspaper which holds a monopolistic position is not conducive to the formation of healthy public opinion. If the newspaper industry is concentrated in a few hands, the chance of an idea antegonistic to the idea of the owners getting access to the market becomes very remote. But our constitutional law has been indifferent to the reality and implication of non-Governmental restraint on exercise of freedom of speech by citizens. The indifference becomes critical when comparatively a few persons are in a position to determine not only the content of information but also its very availability. The assumption in a democratic set up is that the freedom of the press will produce a sufficiently diverse press not only to satisfy the public interest by throwing up a broad spectrum of views but also to fulfil the individual interest by enabling virtually every one with a distinctive opinion to find some place to express it.”
Freedom of press has always been regarded as an essential pre-requisite of a democratic form of Government. It has been regarded as a necessity for the mental health and the well being of the society. It is also considered necessary for the full development of the personality of the individual. It is said that without the freedom of press truth cannot be attained. The freedom of press is a part of the freedom of the speech and expression as envisaged in Article 19(1)(a) of the Constitution of India. Thus, the freedom of the press is included in the fundamental right of freedom of expression. The freedom of press is regarded as “the mother of all other liberties” in a democratic society”.—Harijai Singh : In re, 1987 Cri LJ 58 at 61 (SC); See also Indian Express Newspaper v. Union of India, AIR 1986 SC 515 : (1985) 1 SCC 641.
It has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists. In an organised society, the rights of the press have to be recognised with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings. If a newspaper publishes what is improper, mischievously false or illegal and abuses its liberty it must be punished by Court of Law. The Editor of a newspaper or a Journal has a greater responsibility to guard against untruthful news and publications for the simple reason that his utterances have a far greater circulation and impact than the utterances of an individual and by reason of their appearing in print, they are likely to be believed by the ignorant. That being so, certain restrictions are essential even for preservation of the freedom of the press itself. To quote from the report of Mons Lopez to the Economic and Social Council of the United Nations :
“If it is true that human progress is impossible without freedom, then it is no less true that ordinary human progress is impossible without a measure of regulation and discipline.” It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be punished as a news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression.—Harijai Singh : In re, 1997 Cri LJ 58 at 62 (SC).
An Editor is a person who controls the selection of the matter which is to be published in a particular issue of the newspaper. The Editor and Publisher are liable for illegal and false matter which is published in their newspaper. Such an irresponsible conduct and attitude on the part of the editor, publisher and the reporter cannot be said to be done in good faith, but distinctly opposed to the high professional standards as even a slightest enquiry or a simple verification of the alleged statement about grant of petrol outlets to the two sons of a senior Judge of the Supreme Court, out of discretionary quota, which is found to be patently false would have revealed the truth. But it appears that even the ordinary care was not resorted to by the contemners in publishing such a false news items. This cannot be regarded as a public service, but a dis-service to the public by misguiding them with a false news. Obviously, this cannot be regarded as something done in good faith.—Harijai Singh : In re, 1997 Cri LJ 58 at 62 (SC).
The importance of the press in a democratic set up can neither be minimised nor curtailed. The conferment of freedom of speech and expression on the press pre-supposes their responsibilities, limitations and accountability. It is expected from a responsible press that before reporting, they shall exercise restraint and try to ascertain the genuineness, correctness and the authenticity of the report to be published. It is emphasised that such an obligation is expected more while reporting the Court proceedings. Before reporting the Court proceedings, the responsible press is required to ascertain the true position either from the record or from an official of the registry. Such a course is necessary not to erode the confidence of a common in the judiciary. The Courts are sure that the press would come to the expections of the people and take effective measures wherever needed in reporting the matters of public importance.—High Court of Karnataka v. State of Karnataka, AIR 1998 Kant 327 at 327, 328 (DB) : (1998) 4 Kant LJ 749.
Article 19(1)(a) of the Constitution of India speaks about freedom of speech and expression but not included the freedom of press. But it is implied that freedom of speech and expression includes freedom of press also. In other words, freedom of speech and expression, carries with it the right to publish and circulate, propagate one’s ideas, opinions and views with complete freedom and by resorting to any available means of publication subject again to such restrictions as can be legitimately imposed under Article 19(2) of the Constitution. The success of democracy depends upon free, fair, honest and independent press.—M. Hasan v. Govt. of A.P., AIR 1998 AP 35 at 40.
Justice Blackstone in his Commentary on the Law of England, while dealing about the freedom of press in England, opined as follows :—
“The liberty of the press, properly understood, is essential to the nature of a free State; but that this consists in laying no previous restraints upon publications; and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay, what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press. But if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity.....”
Lord Justice Denning in “Freedom under the Law” while dealing with publication of news and control, etc. observed as follows :—
“Every country preserves to itself the right to prevent the expression of views which are subversive of the existing Constitution or a danger to the fabric of society..... Free and frank discussion and criticism of matters of public interest must in no way be curtailed, but there comes a point at which every country must draw the line; and that is when there is threat to overturn the State by force.....”
Thus a “free press” which is neither directed by the Executive, nor subjected to censorship, is a vital element in a free State.—M. Hasan v. Govt. of A.P., AIR 1998 AP 35 at 41.
Right of freedom of press is not higher than the right of freedom of speech of an individual and this right as is said, is not an absolute right. This is a right guaranteed under Article 19 of the Constitution of India and this right is subject to restrictions mentioned in Article 19 of the Constitution. Even without that, it is well settled principle of equity that, one’s freedom to move his arm ends where somebody’s nose starts. Freedom of expression or freedom of press would not certainly include freedom to defame. It would be, however, a different story if such publication is made which is factually correct and which is in public interest.—A.H.K. Prasad v. Union of India, 2002 Cri LJ
2464 at 2471 (AP).
Disclaimer : The views
expressed in the articles are author’s own views B’Cognizance or
IIITA is not liable for any objections arising out of the same.
The matter here is solely for academic use only.