The Supreme Court upholds press freedom, again
The top court's Media One judgment reinforces its decades-long role as chief protector of an independent press
The Supreme Court judgment quashing the Media One telecast ban on Wednesday fortifies the constitutional right ensuring freedom of speech and expression, which includes in its fold the right of the press to disseminate information freely and fearlessly.
Describing an independent press vital for the robust functioning of a democratic republic as it shines a light on the functioning of the State, the apex court remained emphatic that the press has a duty to speak truth to power and thus, the State cannot muzzle the media citing criticism of government policies or actions.
The restriction on the freedom of the press compels citizens to think along the same tangent, said a bench led by Chief Justice of India Dhananjaya Y Chandrachud, cautioning that a homogenised view on issues that range from socio-economic polity to political ideologies would pose grave dangers to democracy.
The Supreme Court judgment on Wednesday not only firms up media freedom but also adds to an illustrious history of the top court being the chief protector of the freedom of the press that has consistently and strongly rejected all endeavours by the State to tinker with the constitutional right of the press to air views that may not be palatable to successive governments.
Prior judgments journalists rely on
The Preamble of the Constitution of India speaks of liberty of thought, expression, belief, faith and worship. Article 19 (1)(a) lays down that all citizens shall have the right to freedom of speech and expression.
Former Supreme Court judge Krishna Iyer once said that “this freedom is essential because the censorial power lies in the people over and against the Government, and not in the Government over and against the people.”
In Romesh Thappar Vs State of Madras (1950), the Supreme Court held that freedom of speech lay at the foundation of all democratic organisations. In Sakal Papers (P) Ltd & Ors Vs Union of India, (1962), a constitution bench held that freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments, and must be preserved.
After a bundle of verdicts invigorated the right to free speech, the Supreme Court expanded the right to include freedom of press into it.
In Bennett Coleman & Co & Ors v. Union of India & Ors (1973), the Supreme Court advocated for “free market of ideas” and the role of the newspapers in keeping up the faith of a citizen in political wisdom and virtue. “The faith in the popular Government rests on the old dictum ‘let the people have the truth and the freedom to discuss it and all will go well’. The liberty of the press remains an ‘Ark of the Covenant’ in every democracy...The newspapers give ideas. The newspapers give the people the freedom to find out what ideas are correct.”
In the same judgment, justice KK Mathew said that the constitutional guarantee of freedom of speech is not so much for the benefit of the press as it is for the benefit of the public. “The freedom of speech includes within its compass the right of all citizens to read and be informed,” he noted.
Again, in Indian Express Vs Union of India (1985), the apex court had declared that the freedom of print medium is covered under the freedom of speech and expression. “In today's free world freedom of press is the heart of social and political intercourse...The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities,” underlined this judgment.
In S Khushboo Vs Kanniamal & Anr (2010), the Supreme Court stated that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. “This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the culture of open dialogue is generally of great societal importance,” added the court.
In Vinod Dua Vs Union of India (2021), the top court held that a journalist cannot be criminally prosecuted for expressing dismay or disappointment at government policies or criticising the government without there being any intent or overt act to incite people to violence or disturb public order.
The Supreme Court judgment on Wednesday in the Media One case has stressed criticism of government action cannot be called “anti-establishment”, adding the use of such a terminology in itself, represents an expectation that the press must support the establishment. “Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. The right to access information cannot be limited due to fear of criticism of actions of the government in a democratic society premised on open government,” it said.
What about the internet?
Some of the recent Supreme Court judgments have further expanded the right of free speech to television, airwaves and most recently to the Internet.
Rights of electronic media were acknowledged by the Supreme Court in Secretary Ministry of Information & Broadcasting, Government of India Vs Cricket Association of Bengal (1995), when it asserted that if the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. “The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies,” added the judgment.
Back in 2015, in Shreya Singhal Vs Union of India, the Supreme Court expanded the contours of free speech to the Internet, and struck down the much-abused Section 66A of the Information Technology Act, which authorised police to arrest people for social media posts construed “offensive”or “menacing”. While declaring the provision arbitrary and excessively disproportionate , the top court held that Section 66A severely impacted the right of people to know “which the Internet provides to persons of all kinds”.
The exercise of the constitutional right on the Internet was cemented by a recent ruling of the Supreme Court in Anuradha Bhasin Vs Union of India (2020) when the court examined Internet shutdowns in Jammu and Kashmir. The court expressly declared the right to freedom of speech and expression over the Internet as a fundamental right. “We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g),” ruled the judgment.
The court added that any order suspending internet services indefinitely is “impermissible” and suspension of Internet, being a drastic measure, must be considered by the state only if it is necessary and unavoidable.
Restrictions on free speech and the press
The right under Article 19(1)(a), like every other right under the Constitution, is not absolute. Article 19(2) lays down that the State shall be entitled to impose reasonable restrictions on exercise of rights under Article 19 by way of framing laws. Article 19(2) provides that the right can be regulated and prohibited “be in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
Through a series of judgments, the top court has clarified that any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2).
On the ambit of restrictions that the state can impose on free speech under Article 19(2), the Supreme Court in Chintaman Rao Vs State of Madhya Pradesh (1950) held that such restrictions are amenable to judicial review. In State of Madras Vs G Row (1952), the court said that the test of reasonableness, whenever prescribed, shall be applied to each individual statute impugned and that no abstract or general principle of reasonableness can be laid down for all prohibitory laws.
The Supreme Court also clarified in Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia (1960), that “public order” must be distinguished from the other grounds mentioned under Article 19(2) and taken in an exclusive sense to mean public peace, safety and tranquility as opposed to national upheavals, such as revolution, civil strife and war, affecting the security of the state.
Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered, the top court said in S Rangarajan Vs P Jagjivan & Ors (1989).
In the Cricket Association of Bengal Case (1995), the Supreme Court underscored that a regulation over the exercise of free speech and press freedom can only be exercised within the framework of Article 19(2) and the dictates of public interests. “To plead for other grounds is to plead for unconstitutional measures,” it said.
A catena of apex court judgments has maintained that restrictions under Article 19(2) may very well include complete prohibition in appropriate cases, but added in the same breath that there should not be excessive burden on free speech even if a complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate (State of Gujarat Vs Mirzapur Moti Kureshi Kassab Jamat, 2005).
While striking down Section 66A of the IT Act in the Shreya Singhal Case (2015) on the ground that it created an offence beyond the ambit of restrictions enumerated under Article 19(2), the Supreme Court emphasised that wider range of circulation over the internet cannot restrict the content of the right under Article 19(1)(a) nor can it justify its denial.
Over the last two decades, the Supreme Court has stressed on the test of proportionality and the principle of least restrictive measure to adjudicate the claims against the government orders seeking to put curbs on free speech and the right of the press to disseminate information.
Arising from the need to balance and harmonise two competing rights, the principle of proportionality was explicitly crystallised in the nine-judge bench judgment of the Supreme Court in the right to privacy case (KS Puttaswamy, 2017) wherein it was held that proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.
Further, in CPIO vs Subhash Chandra Aggarwal (2019), the meaning of proportionality was expounded. “It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question,” stated this judgment.
In the Anuradha Bhasin case (2020), the apex court highlighted the need of the state to be mindful of the doctrine of proportionality and resort to the least restrictive measure whenever a burden on free speech is sought to be put. “It ought to be noted that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate. The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed,” held the court.
The Wednesday verdict by the CJI-led bench has yet again underlined the significance of the proportionality standard tests and the least restrictive measure, as it noted that the freedom of the press which is protected as a component of Article 19(1)(a) can only be restricted on the grounds stipulated in Article 19(2) of the Constitution. “Criticism of governmental policy can by no stretch of imagination be brought withing the fold of any of the grounds stipulated in Article 19(2),” ruled the judgment while quashing the Centre’s ban.
The latest Supreme Court judgment reinforces the freedom that the press must enjoy for strengthening the democratic form of government which itself demands public discussion with people's participation as a basic feature and a rational process of democracy while serving as a reminder to those in power against state excesses and executive intolerance.
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