Constitutional Foundation of Media Freedom Dr Madabhushi Sridhar

Constitutional Foundation of Media Freedom Dr. Madabhushi Sridhar NALSAR University of Law, Hyderabad.

Democratic Right n n n Freedom of press is part of freedom of speech and expression as available to every citizen, under Constitutional proclamation and protection Preamble mentions ‘Liberty of thought, expression, belief, faith and worship Freedom of expression is practical application of individual freedom of thought

Collective Right n n Freedom of thought is personal, freedom of expression is collective, which becomes more and more expressive with new months of their diffusion Life, liberty and pursuit of happiness are three important objectives of law, democracy and social life. It was part of Declaration of American Independence.

Constitutional Right n n n It is a right guaranteed by Const. & placed under Part III as FR. It is not legal right, a law has not given thus, law cannot take it back. Even Constituional right can be withdrawn. But this right cannot be, because it is fundamental in democracy and part of basic structure of the Constitution.

Article 19 n n n 1) All citizens shall have the right a) to freedom of speech and expression b) to assemble peacefully and without arms c) to form associations or unions d) to move freely throughout the territory e) to reside and settle in any part of territory

Restrictions n n n (2) State can make law to impose reasonable restrictions in the interests of Sovereignty and integrity of India Security of State Friendly Relations with foreign States Public Order, Decency or morality, Contempt of Court, Defamation, Incitement to an offence.

Other Constitutions n n n First and 14 th Amendments to US: Congress shall make no law. . . abridging the freedom of speech or press, religion, assembly, petition for redress of grievance Common Law of England Section 40(6)(1) of Const of Eire 1937 Section 18(1)(e)(f)(g): Srilanka Const. 1972 Article 50 & 51 of USSR Const 1977

International Conventions n n Art. 13, 19, 20, 23, 29 of UDHR 1948 Art 22 of International Covenant of Civil and Political Rights 1966 Art. 11 of the European Convention on Human Rights, 1950 Art 6, 12 of International Covenant on Economic, Social and Cultural Rights, 1966

Meaning n n n Article 10 of ECHR provides that Everyone has the right to freedom of expression. This right shall include freedom to hold opinion and to receive and impart information and ideas without interference by the public authority regardless of the frontiers.

Amendments to Art 19 n n n First Amendment 1951 Sixteenth Amendment 1963 Forty-fourth Amendment, 1978 Civil Liberties are Fundamental rights provided under Art 19, 21, and 22 Deprivation of Personal Liberty is violation of Article 21 and 22.

Personal Liberty n n Art 19 deal with important attributes of personal liberty, life and personal liberty are sought to be protected under Art 21, which include varieties of rights. Other legal rights which may be on par with civil rights are: right to strike, freedom of contract, right to franchise and right to contest for legislative election.

Citizens and persons n n Rights under Art 19(1) are basic and available only for citizens and not all persons, thus foreigners are excluded Citizen gets legal capacity to exercise the rights, entitled to enjoy. State is restricted to exercise its authority in making law or taking any action curbing these freedoms unreasonably.

Meaning n n n right to express one’s own convictions and opinions freely without any interference from any authority or person Right to receive and express ideas and information and the secrecy of the private communication (Halsbury’s Laws of England) Usha Uthup v West Bengal. 1984

Purpose n n Helps an individual to attain self fulfillment Assists in the discovery of truth Strengthens capacity of an individual in participating in decision making process Provides mechanism by which it is possible to establish a reasonable balance between stability and social change.

n n n Need of Democracy To take part in all matters of governing and all spheres of life Governed need to form a wise and intelligent judgment and create an enlightened public opinion Public discussion assumes the nature of public duty. In democracy it is not individual right but right of community to hear and informed.

Freedom of Media is not higher than ordinary citizen guarantees absence of interference independent editorial authority contents of newspaper are left to choice of editor. Fo. P does not exist where Govt dictates its views to newspapers. Freedom lies both in content, circulation & equitable distribution of newsprint.

Public Discussion n n Himmatlal K Shah v Commissioner of Police, 1973 SC case: Bombay Police Act 1951 is challenged. Refusal to hold public meeting in public park held against Art 19. Public processions are prima facie legal. F of Expression and assembly are essential elements of democratic system. Right to meet face to face with others for discussion

Bandh & Expression Right n n Bandh is expression of protest, but forced enforcement bandh is violation of other’s right or expression and business. CPM v. Uo. I AIR 1998 SC 184, Bandh or Hartal violate the Art. 19. FRs of citizens as a whole cannot be subservient to the claim of FR of an individual.

Express Case 1986 n n Notice of re-entry upon forfeiture of lease and threatened demolition of building- Held to be threat to silence the press, violation of 19(1)(a) &14. Right to Reply LIC v Manubhai D Shah, Yogakshema, 1986 SC 515, right to propagate one’s view and to answer criticism leveled against his view.

Beyond Genocide n A trust produced documentary on Bhopal, which won Golden Lotus, DD refused to telecast, as it contains criticism of Govt. Not valid under 19(1)(a) Film maker has a FR to exhibit his film, onus lies on party which claims that it was entitled to refuse under 19(2). Any attempt to stifle, suffocate or gag this right would sound a death knell to democracy.

Maneka Gandhi n No geographical limitation on Fo. S, it carries with it right to gather information as also to speak and express oneself at home and abroad and to exchange ideas with others not only in India but also outside. If the direct or indirect consequence of canceling passport is to abridge Fo. S, not valid. But to travel abroad cannot be claimed as an integral right of Fo. S. 1978

National Anthem Case n n 1986 3 SCC 615 Right of Jehova Witnesses not to take part in singing NAnthem is not insult and part of Fo. SE. Circular of Director public instruction held violation of 19(1)(a) Romesh Thapper, Cross roads case, Brijbhushan Organiser Limiting Fo. SE to prevent prejudicial activity not valid. Public Order is added as ground for restrictions.

Newspapers Price Page Act n n Daily Newspaper Price and Page Order 1960, fixing minimum number of pages, ad news ratio. It will affect circulation so violative of Art 19. Sakal Papers Pvt Limited v Uo. I 1962 SC 305 Bennet Coleman v Uo. I 1973 SC 106 Paper was asked to reduce the space for ads. Held not valid.

Advertisements & 19(1)(a) n n n Right to Govt Ads: equitable distribution of ad revenue as per norms. Art 14 Govt cannot deny Ads because it was criticised- Art 19. Dainik Samband v State of Tripura, 1989, Ushodaya, 1981, Gulam Nabi v J&K 1990 Mian Bashir v Jammu & Kashmir 1982, J&K 26. Privileges of rights under 105

Restriction on Ads n n n Ads to promote drugs can be restricted. Hamdard Dawakhana v Uo. I 1960 SC 554 Ad involves commercial element, thus to be guided by noble restrictions. All ads does not relate to Fo. S E of ideas. Yellow Pages Case, 1995 (5) SCC 139: commercial ad is also part of Fo. SE, no exclusive right to publish Tele directory.

Electronic Media n n n Honi Anhoni, was restrained as it spreads false beliefs superstition. No material to show that serial was prejudicial, not valid. Odyssy Communications case 1988 SC 1642 Restrictions on Tamas: Not valid Romesh v UOI 1988 SC 775 Hero Cup Case: Govt has no monopoly of airwaves. Right to telecast imp event. 1995 (2) SCC 161

Films n n Censorship justified in KAAbbas v Uo. I 1971 SC 481. Classifying as A and U valid Bandit Queen case, Bobby Art International v Om Pal Singh Hoon Case, 1996(4) SCC 1 Issuance of A certificate was held valid. Film has to be judged in its entirety. Nude scenes, arousing a sense of revulsion against perpetrators and pity for victim permitted.

Reasonable Restrictions n n Security of State- serious and aggravated form of public disorder. Speeches and expressions which encourage violent crimes are considered to be related to security of state Public Order- state of tranquility which prevails amongst the members of society as a result of internal regulations enforced.

Public disorder n n Section 124 A of IPC: SC held that the activity would be rendered penal when it is intended to create disorder (State of Bihar v Shailabala 1952 SC 329) Not mere criticism of Govt action. Official Secrets Act is in force in the name of security of state. Incitement to offence, insult to religion, Section 144 Cr. PC Babulal Parate 1971 SC

Contempt of Court n n Co. C Act 1973, Section 228 IPC makes Co. C punishable. Art 129 empowers SC to administer Co. C powers. Reasonable Restriction over 19(1)(a). Friendly Relations with Foreign Statesfor protection: Not through executive or departmental instructions, only by legislative restrictions.

Defamation n Right to Reputation as read into Art 21. Section 499 & 500 IPC Decency & Morality: no writing should deprave morals of youth, no expression should promote indecent ideas and activities. Hicklin Test Ranjit Udeshi, Section 292 of IPC obscene Lady Chatterley’s Lover SC upheld conviction.

Privacy n n Most invaluable human right, right to be let alone to protect one’s inviolable personality Intrusion of privacy threatens liberty, it is an offence to personal dignity, outraging the modesty of a woman 324 IPC. Insult to modesty 505 IPC. Autoshankar Case Rajgopalan v TN 1995 SC 264, autobiography of condemned man

Telephone Taping n n PUCL v Uo. I 1997 SC 568 there should be just and reasonable procedure for regulating the exercise of power under Indian Telegraph Act 1885 Section 5(2), to safeguard rights of people under 21 and 19 Tapping violates 19 if fair procedure is not adopted. It may be violation of privacy also.

Interview of prisoners n n Press can interview prisoners, but require to seek consent of prisoner and permission from authorities as per Jail Manual (Smt Prabha 1982 SC 6) For interview of under-trial prisoner, court has to permit, journalist has to do it as per the restrictions and regulations as per jail manual Press has no unfettered right to interview. (Charulata Joshi, 1999 SC

Section 295 A of IPC n n Deliberate and malicious insult or attempt to insult or to outraging the religious feelings, disrupt the public order, to punish it under 295 is valid under 19(2) (Ramjilal Modi v State UP 1957 SC 620) Promotion of disharmony or ill will between two groups 153 A IPC, religious appeal with prejudicial effect-offence u/s 123(3 A) RPA

Babulal v Maha 1961 SC 884 n n Prohibitive orders can be given by DM u/s 144, to prevent disorders, obstruction and annoyance and the Magistrate has to act judicially, the orders are temporary in nature to meet emergency situations. DM could be the judge of situation. Life of this order cannot be extended beyond 2 months, if so, it is unconstitutional

Liberty is not licence to anarchy n n Justice Jackson: it is not choice between order and liberty, but it is between liberty with order and anarchy without either. He pleaded for little practical wisdom in extending doctrine of clear and present danger test, if not bill of rights convert into a suicide pact. (Teminiello v Chicago 337 US 1)

Flag case in US n n Minersville School Dist v Gobitis 310 US 586, US SC upheld the requirement of participation by the school students in flag saluting ceremony and Jehovah witnesses are not exempted from mandatory requirement on grounds of violating religious belief. Display of red flag as protest is protected (Stromberg v California 283 US 359)

Burning Flag n n Street v New York 1969 US, street burned 48 star flag of US uttering some contemptuous words against flag as a protest against killing of James Meredith in Mississipi. SC reversed conviction of Street for words. Though punished for burning, his words are protected. Thornhill v Alabama, 1940 310 US 88 peaceful picketing is Constitutional.

First Amendment n n After Crossroads (affecting public order) & Organiser(disturbing friendly neighbours), In re Bharati Press (writing inciting an offence) cases, first amendment was brought in 1951 to include three grounds 1) public order, 2)friendly relations with foreign countries 3) incitement to an offence

Preventive Injunction n Reliance Petrochemical Ltd v Indian Express 1989 SC 190: WPs filed challenging Secured Convertible Debentures of RP, SC allowed issue to be proceeded with. Interim injunction against Express from writing against, E moved for vacation, court has to balance free press and fair trial. (CJ Sabyasachi said right to know is essential under Art 21)

Press v Parliament n n MSM Sharma v Sri Krishna Sinha 1959 SC 395. Parliament can prohibit publication of any report in press. 19 is subject to 194(3) In re Special Reference 1965 SC 745 Kehar sing punished by speaker for pamphlet distribution in assembly. Filed WP. LA ordered arrest of judges, advocate and K, 28 JJ stayed it. LA ordered JJ to appear.

Reporting Legislature n n Parliamentary Proceedings (Protection of Publications) Act, 1956, It was repealed in Emergency. Article 361 A added in 1978 to protect publication of proceedings if substantially true, without malice. Immunity from court proceedings also extend to media, electronic and news agency also. Applicable to Legislative reporting also. Secret session cannot be reported.

TV: Indira Jaising n n Indira Jaising v Uo. I 1989 Bom 28 Petitioner was interviewed on Muslim Women (Right to Protection on Divorce) Bill, but was not telecast. Held- Violation of 19. Universal Communication System Case, 1995 Al. HC 6398 Hindalco 1966 all 199 entertainment tax levied on Cable TV Network, valid.

Right to Use Loudspeaker n n K. Venu v DGP 1990 Ker 344 There is no fundamental right to use loudspeaker. Sound pollution and indiscriminate use can be regulated. Venu was denied mandamus. DA Prabhu v State of Ker 1975 Ker 117 total restriction on use of loudspeaker is against 19.

Compelled Speech n n (Motion Picture Association 1999 SC 2324) Direction to exhibit news current events does not violate 19. Statutory obligation that any food product must carry on its package list of ingredients used in its preparation, weight, mrp etc, obligation to publish statutory warning on cigarette -valid.