A

Project Report on

Reasonable Restrictions under Article 19(2)

Submitted To: Dr.Deepak Srivastava
(Faculty Constitutional Governance-I)
Roll no: 97
Semester-II
(B.A.L.L.B. Hons.)
Submitted By: Naveen kumar Sihare

Date of Submission: 31/10/2018

Hidayatullah National Law University
1
Index
Page No.

1. Introduction 3

2. Meaning and scope of Article 19(1)a 4

3. Reasonable restrictions 5

4. Present position of Article 19(1)a 9

5. New dimensions to Article 19(1)a 10

6. Freedom of the Press 11

7. Media and Law 12

(i) Trial by the Media

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 Acknowledgements

First & foremost, I take this opportunity to thank Dr.Deepak Srivastava, Faculty,
Constitutions governance-I, HNLU, for allotting me this challenging topic to work on. he
has been very kind in providing inputs for this work, by way of suggestions and by giving
her very precious time for some discussion and providing me resource of her vast
knowledge of the subject which helped me to look at the topic in its very broad sense also
to look at some of the very narrow concepts by expertise view. Therefore she proved to be
a database in making this project. Hence I would like to thank he.

I would also like to thank my dear colleagues and friends in the University, who have
helped me with ideas about this work and also a source for constant motivation and hence
they were a guiding force to me in making of this project. Last, but not the least I thank the
University Administration for equipping the University with such good library and IT lab.

My special thanks to library staff and IT staff for equipping me with the necessary books
and data from the website.

I would also like to thank the hostel staff for providing me a healthy and clean environment
that provided me a great concentration level.

Naveen Kumar Sihare

Roll No. – 97

Semester- III (B.A.L.L.B. Hons.)

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 DECLARATION
I, Naveen sihare, hereby declare that, the project work entitled, ‘‘Reasonable Restriction of under article
19(2) ’’ submitted to H.N.L.U., Raipur is record of an original work done by me under the guidance of
Dr.Deepak Srivastava, Faculty Member, H.N.L.U., Raipur.

Naveen sihare
Section-B, Batch XIII
Roll No. 97
31/10/2018

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 Objectives

1. To discuss about the article 19(1)

2. To discuss article 19(2)

Research Methodology
This Research Project is Descriptive in nature as it uses descriptive language for the explanation of
various topics and subjects discussed in this project

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Introduction
"I disapprove of what you say, but I will defend to the death your right to say it" - Voltaire.

This one line sums up for me, the whole essence of democratic behaviour. Speech is God's gift to
mankind. Through speech a human being conveys his thoughts, sentiments and feelings to others.
Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is,
therefore, a basic right. "Everyone has the right to freedom of opinion and expression; the right includes
freedom to hold opinions without interference and to seek and receive and impart information and ideas
through any media and regardless of frontiers" proclaims the Universal Declaration of Human Rights
(1948). The people of India declared in the Preamble of the Constitution, which they gave unto themselves
their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in
Article 19(1)(a) which is one of the Articles found in Part III of the Constitution, which enumerates the
Fundamental Rights. Similar laws exist in other democracies.

Man as rational being desires to do many things, but in a civil society his desires have to be controlled,
regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of
the above right is, therefore, restricted by the Constitution in the larger interest of the community. The
right to freedom of speech and expression is therefore subject to limitations imposed under Article 19(2)
by the First Amendment to the Constitution in 1951 which attempted to strengthen state regulation over
the freedom of speech and expression by expanding the scope of Article 19(2).

The text of Article 19(1)a and Article 19(2)

Article 19(1)a and 19(2) read as follows:

19. Protection of certain rights regarding freedom of speech, etc:-

(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) ...
(c) ...
(d) ...

6
 (e) ...
(f) ...
(g) ...

[(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the
state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the
rights conferred by the said sub clause 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.]

Meaning and Scope

Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and
expression. 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. It thus includes the
expression of one's idea through any communicable medium or visible representation, such as gesture,
signs, and the like. This expression connotes also publication and thus the freedom of press is included in
this category. Free propagation of ideas is the necessary objective and this may be done on the platform or
through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is
essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be
of little value. The freedom of speech and expression includes liberty to propagate not one's views only. It
also includes the right to propagate or publish the views of other people; otherwise this freedom would not
include the freedom of press.

Freedom of expression has four broad special purposes to serve:

1) It helps an individual to attain self-fulfilment.
2) It assists in the discovery of truth.
3) It strengthens the capacity of an individual in participating in decision-making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance between

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stability and social change.
5) All members of society would be able to form their own beliefs and communicate them freely to others.

In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and
expression should, therefore, receive generous support from all those who believe in the participation of
people in the administration. It is on account of this special interest which society has in the freedom of
speech and expression that the approach of the Government should be more cautious while levying taxes
on matters of concerning newspaper industry than while levying taxes on other matters.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words
"freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's
views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the
right to propagate one's views through the print media or through any other communication channel e.g.
the radio and the television. Every citizen of this country therefore has the right to air his or their views
through the printing and or the electronic media subject of course to permissible restrictions imposed
under Article 19(2) of the Constitution.

Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle, suffocate
or gag this right would sound a death knell to democracy and would help usher in autocracy or
dictatorship. The modern communication mediums advance public interest by informing the public of the
events and development that have taken place and thereby educating the voters, a role considered
significant for the vibrant functioning of a democracy. Therefore, in any setup more so in a democratic
setup like ours, dissemination of news and views for popular consumption is a must and any attempt to
deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the
Constitution.

The various communication channels are great purveyors of news and views and make considerable
impact on the minds of readers and viewers and our known to mould public opinion on vitals issues of
national importance. The freedom of speech and expression includes freedom of circulation and
propagation of ideas and therefore the right extends to the citizen to use the media to answer the criticism
levelled against the views propagated by him. Every free citizen has undoubted right to lay what

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sentiments he pleases. This freedom must, however, be exercised with circumspection and care must be
taken not to trench on the rights of other citizens or to jeopardise public interest

Reasonable Restrictions under Article 19(2)

The freedom of speech and expression does not confer an absolute right to speak and publish, without
responsibility, whatever one may choose or an unrestricted or unbridled licence that gives immunity for
every possible use of language and does not prevent punishments for those who abuse this freedom.1
Clause (2) of Article 19 specifies the grounds on which the freedom of speech and expression may be
restricted. It enables the legislature to impose reasonable restrictions on the right to free speech “in the
interests of” or “in relation to” the following:

1) Sovereignty and integrity of India.

2) Security of the state.
3) Friendly relations with foreign states.
4) Public Order.
5) Decency and Morality.
6) Contempt of court.
7) Defamation.
8) Incitement to an offence.

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by an
executive action.2 Now we shall consider these heads separately in the above given order

1. Sovereignty and Integrity of India – This ground has been by the Constitution (Sixteenth
Amendment) Act, 1963. The present amendment is made to guard against the freedom of speech
and expression being used to assail the territorial integrity and sovereignty of the Union. Thus, it
will be legitimate for the Parliament under this clause to restrict the right of free speech if it
preaches secession of any part of the territory of India from the Union. However, what has to be

1
Romesh Thappar v. State of Madras, AIR 1950 SC 124
2
Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133; Bijoe Emmanuel v. State of Kerela, (1986)3 SCC 615

9
 kept in mind is that teh restriction is with respect to the territorial integrity of the Union of India
and not with respect to the territorial integrity of the constituent states.3

2. Security of the state – The security of the state may well be endangered by the crimes of violence
intended to overthrow the government, waging of war and rebellion against the government,
external aggression or war, etc. Serious or aggravated forms of public disorder are within the
expression “security of state”. Every public disorder cannot be regarded as threatening the security
of the state. In Romesh Thapar case4 the Supreme Court pointed out that the expression does not
refer to ordinary breaches of public order which do not involve any danger to the state itself.
Incitement to commit violent crimes like murder would endanger the security of the state. Thus, in
State of Bihar v. Shailabala Devi5, the law which made the signs, words or visual representations
which caused the incitement of violence fall squarely within Article 19(2). After the amendment of
the Constitution in 1951 “public order” was added as a ground for restrictive laws.

3. Friendly relations with foreign states – This ground was added by the Constitution (First
Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech
in the interest of friendly relations with foreign states. The justification is obvious: unrestrained
malicious propaganda against a friendly foreign state may jeopardise the maintenance of good
relations between India and that state.

4. Public Order – The preservation of public order is one of the grounds for imposing restrictions on
the freedom of speech and expression. This ground did not occur in the Constitution as framed in
1950 but was added later by the First (Amendment) Act, 1951. The expression “public order” is
synonymous with public peace, safety and tranquillity. 6 It signifies the absence of disorder

3
Article 3 of the Constitution : Formation of new states and alteration of areas, boundaries or names of existing states –
Parliament may by law –
(a) Form a new state by separation of territory from any state or by uniting two or more states or parts of states or by
uniting any territory to any part of any state;
(b) Increase the area of any state;
(c) Diminish the area of any state;
(d) Alter the boundaries of any state;
(e) Alter the name of any state.
4
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
5
AIR 1952 SC 329.
6
Supdt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.

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 involving breaches of local significance in contradistinction to national upheavals such as
revolution, civil strife or war, affecting the security of the state.

It may be noticed that clause (2) uses the words “in the interests of public order” and not “for the
maintenance of public order”. A law may not be designed to directly maintain law and order yet it
may be enacted in the “interests of public order”. Also, not only such utterances as are directly
intended to incite disorder, but also those that have the tendency to lead to disorder fall within the
expression.7 Thus, a law punishing utterances made with deliberate intention to hurt the religious
feelings of any class is valid, because it imposes a restriction on the right to free speech in the
interest of public order, since such speech or writing has the tendency to create public disorder
even if in some cases such activities may not lead to the breach of peace. 8 In the case of Virendra
v. State of Punjab9 certain safeguards which compelled the court to hold restrictions as
substantively and procedurally reasonable were:

a) The positive requirement of the existence of satisfaction of the authority as to the necessity for
the making of the order for specific purposes mentioned in the Act.
b) The discretion was given in the first instance to the State Government to determine the
necessity of passing the order.
c) The order could remain in force only for two months from its making thereof.
d) The aggrieved party was given the right to make representation to the State government which
could on consideration thereof rescind, modify or confirm the order.
5. Decency and morality – Decency and morality is another ground on which freedom of speech and
expression may be reasonably restricted. Decency is same as lack of obscenity. Obscenity becomes
a subject of constitutional interest since it illustrates well the clash between the right of individuals
to freely express their opinion and the duty of the state to safeguard their morals. It is obvious that
the right to freedom of speech and expression cannot be used to deprave and corrupt the
community.
In Ranjit Udeshi v. State of Maharashtra10the Supreme Court for the first time was called upon to
lay down the test to determine obscenity. The facts were that the appellants, a Bombay bookseller,

7
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620; Virendra v. State of Punjab, AIR 1957 SC 896.
8
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.
9
AIR 1957 SC 896.
10
AIR 1976 SC 881.

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 was prosecuted under Section 292of the Indian Penal Code for selling and for keeping for sale the
well known book, Lady Chatterly’s Lover written by D.H. Lawrence. The Magistrate held that the
book was obscene and sentenced the appellant. The court held that it had the right to restrict the
freedom on the grounds of decency and morality.

6. Contempt of Court – The constitutional right to freedom of speech does not prevent the courts
from punishing for their contempt spoken or printed words or any other expression calculated to
have that effect.11 The expression “contempt of court” is now defined in Section 2 of the Contempt
of Courts Act, 1971 as under:
a) “contempt of court” means civil contempt or criminal contempt;
b) “civil contempt” means wilful disobedience to any judgement, decree, direction, order, writ or
any other process of a court or wilful breach of an undertaking given to a court;
c) “criminal contempt” means the publication (whether by words spoken or written, or by signs,
or by visible representations, or otherwise) of any matter or the doing of any other act
whatsoever which
i) Scandalizes or tends to scandalize or lowers or tends to lower the authority of any court
ii) Prejudices, or interferes or tends to interfere with the due course of any judicial
proceedings
iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration
of justice in any other manner.

7. Defamation: Defamatory matter exposes a person to hatred, ridicule or contempt. The law of
defamation is divided into libel and slander. Defamatory matter, if in matter, if in writing, printing
or some other permanent medium, is a libel; if in spoken words or gestures, a slander. Right to free
speech does not entitle us to violate the rights of others.

8. Incitement to an offence – This is also a ground added in 1951. The freedom of speech and
expression cannot be used as a licence to incite people to commit an offence. During the debate in
the parliament for the inclusion of this clause it was argued that the phrase “incitement to
violence” should be used instead as the word “offence” has a very wide meaning and can include

11
L.R. Frey v. R. Prasad, AIR 1958 Punj 377.

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 any act which is punishable under the Indian Penal Code or any other law. However, this
suggestion was rejected. In State of Bihar v. Shailabala Devi12 the supreme court held that
incitement to murder or any other violent crime would generally endanger the security of the state;
hence a restriction against such incitement would be valid law under Article 19(2).

Sedition: Sedition embraces all those practices that, whether by word, deed or action are calculated
to disturb the peace and tranquillity of the State and lead innocent people to subvert the
government13. Incitement to violence and public disorder is the gist of the offence. However,
criticism of the existing government or system and expression of a desire for a different system
altogether is not prohibited.14

The Present Position of Article 19(1)a

The present position as to the applications of article 19 of the Constitution to various categories of persons
may be stated in the form of propositions, as under :-

(1) Article 19 of the Constitution being confined to citizens, foreigners cannot claim any right
thereunder15.
(2) A corporation cannot claim citizenship16, and cannot therefore claim any right17 under article 19,
as it stands at present
(3) This is so even though the corporation is a company whose shareholders are citizens of India.18
(4) But the shareholders of a company can challenge the constitutional validity of the law on the
ground of infringement of Article 19, if their own rights are infringed 19, and in such a proceeding
the company may be joined as a party20.

Chronologically, the first important case to be noticed on the point at issue is of 1957. The Supreme Court
had, in that case21, hinted at the difficulty that may arise out of the fact that a non citizen running a
12
AIR 1952 SC 329
13
R. v. Sullivan, (1968) 11 Cox Cases 55.
14
Nihrendu v. Emperor, AIR 1942 FC 22, 26
15
Anwar v. State of J. & K. AIR 1971 SC 337, 338.
16
Barium Chemicals v. Company Law Board, AIR 1967 SC 295; Tata Engineering Co. v. State of Bihar, AIR 1965 SC 40;
S.T.C. v. C.T.O.AIR 1963 SC 1811.
17
Amritsar Municipality v. State of Punjab, AIR 1965 SC 110.
18
Barium Chemicals v. Company Law Board, AIR 1967 SC 295; Tata Engineering Co. v. State of Bihar, AIR 1965 SC 40
19
Bennett Coleman v. Union of India, AIR 1973 SC 106.
20
R.M.D. Chamarbaugwala v. UOI, (1957) SCR 930.

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newspaper is not entitled to the fundamental right of freedom of speech and expression and therefore
cannot claim the benefit of liberty of the press22.

Thereafter, there are two decisions of the Supreme Court reported in 1964, relevant to the subject. The
first was a ruling of a bench of nine judges which by majority held that the provisions of the Citizenship
Act were conclusive on the question that a corporation or a company could not be a citizen of India 23. In
the second case of 1964, it was unanimously decided by a bench of five judges of the Supreme Court that
Article 19 guaranteed the rights in question only to citizens as such, and that an association such as a
company could not claim these rights on the basis that they were an aggregation of citizens.

In 1970, the Supreme Court24 held that the jurisdiction of the court to grant relief cannot be denied when
the rights of the individual shareholder are impaired by State action, if the state action impairs the rights of
a company as well. The test for determining whether the shareholders rights are impaired is not formal; it
is essentially qualitative; if the State action impairs the rights of the shareholders as well of the company,
the court will not, concentrating merely on the technical operation of the action deny itself jurisdiction to
grant relief.

However, it should be pointed that Shah, J. in the above decision25, definitely said that the Supreme Court
rulings of 1964 had no relevance to the question at issue. The petitioner had sought to challenge an
infringement of his own rights and not an infringement of rights of the bank.

In 1973, the majority of the Supreme Court26 held that although a company is not a citizen, the citizen
shareholders can enforce their rights of free speech as the company is only a medium of for expression of
their views.

21
M.S.M. Sharma v. Shri Krishna Sinha, (1959) Suppl. I.S.C.R. 806.
22
S.T. C. v. Commercial Tax Officer, (1964) 4 SCR 90.
23
Tata Engineering and Locomotive v .State of Bihar ,AIR 1965 SC 40
24
R.C. Cooper v. UOI, (1970) 3 SCR 530.
25
Para 2-3, supra.
26
Bennett Coleman v. UOI, AIR 1973 SC 106.

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New Dimensions Of Freedom Of Speech And Expression

Government has no monopoly on electronic media: The Supreme Court widened the scope
and extent of the right to freedom of speech and expression and held that the government has no
monopoly on electronic media and a citizen has under Art. 19(1)(a) a right to telecast and broadcast to the
viewers/listeners through electronic media television and radio any important event. The government can
impose restrictions on such a right only on grounds specified in clause (2) of Art. 19 and not on any other
ground. A citizen has fundamental right to use the best means of imparting and receiving communication
and as such have an access to telecasting for the purpose.

Commercial Advertisements: The court held that commercial speech (advertisement) is a part of
the freedom of speech and expression. The court however made it clear that the government could regulate
the commercial advertisements, which are deceptive, unfair, misleading and untruthful. Examined from
another angle the Court said that the public at large has a right to receive the "Commercial Speech". Art.
19(1)(a) of the constitution not only guaranteed freedom of speech and expression, it also protects the
right of an individual to listen, read, and receive the said speech.

Telephone Tapping: Invasion on right to privacy : Telephone tapping violates Art. 19(1)(a)
unless it comes within grounds of restriction under Art. 19(2). Under the guidelines laid down by the
Court, the Home Secretary of the center and state governments can only issue an order for telephone
tapping. The order is subject to review by a higher power review committee and the period for telephone
tapping cannot exceed two months unless approved by the review authority.

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Freedom of Press

The constitution of India does not specifically mention the freedom of press. Freedom of press is implied
from the Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions that are provided
under the Article 19(2) of the Constitution. Before Independence, there was no constitutional or statutory
provision to protect the freedom of press. As observed by the Privy Council in Channing Arnold v. King
Emperor27: “The freedom of the journalist is an ordinary part of the freedom of the subject and to
whatever length, the subject in general may go, so also may the journalist, but apart from statute law his
privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide
as, and no wider than that of any other subject”. The Preamble of the Indian Constitution ensures to all its
citizens the liberty of expression. Freedom of the press has been included as part of freedom of speech and
expression under the Article 19 of the UDHR. The heart of the Article 19 says: “Everyone has the right to
freedom of opinion and expression, this right includes freedom to hold opinions without interference and
to seek, receive and impart information and ideas through any media and regardless of frontiers.”

In Romesh Thapar v. State of Madras28, Patanjali Shastri, CJ observed: “Freedom of speech and of the
press lay at the foundation of all democratic organisations, for without free political discussion no public
education, so essential for the proper functioning of the process of popular government, is possible.”

The Supreme Court observed in Union of India v. Assn. for Democratic Reforms29: “One sided
information, disinformation, misinformation and non information, all equally create an uninformed
citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and
receive information which includes freedom to hold opinions”.

In Indian Express v. Union of India30, 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:

27
(1914) 16 BOMLR 544.
28
AIR 1950 SC 124.
29
2002(005) SCC 0361SC.
30
AIR 1995 SC 965.

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 1. freedom of access to all sources of information,
2. freedom of publication, and
3. freedom of circulation.

In India, the press has not been able to exercise its freedom to express the popular views. In Sakal
Papers Ltd. v. Union of India31, the Daily Newspapers (Price and Page) Order, 1960, which fixed
the number of pages and size which a newspaper could publish at a price was held to be violative
of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett
Coleman and Co. v. Union of India32, the validity of the Newsprint Control Order, which fixed the
maximum number of pages, was struck down by the Court holding it to be violative of provision of
Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down
the plea of the Government that it would help small newspapers to grow.

In Romesh Thapar v. State of Madras33, entry and circulation of the English journal “Cross Road”,
printed and published in Bombay, was banned by the Government of Madras. The same was held
to be violative of the freedom of
speech and expression, as “without liberty of circulation, publication would be of little value”. In
Prabha Dutt v. Union of India34, the Supreme Court directed the Superintendent of Tihar Jail to
allow representatives of a few newspapers to interview Ranga and Billa, the death sentence
convicts, as they wanted to be interviewed.

There are instances when the freedom of press has been suppressed by the legislature. The
authority of the government, in such circumstances, has been under the scanner of judiciary. In the
35
case of Brij Bhushan v. State of Delhi , the validity of censorship previous to the publication of
an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of
the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to
submit for scrutiny, in duplicate, before the publication, till the further orders, all communal
matters all the matters and news and views about Pakistan, including photographs, and cartoons”,
31
1962 SCR (3) 842.
32
AIR 1973 SC 106.
33
AIR 1950 SC 124.
34
AIR 1982 SC 6.
35
AIR 1950 SC 129.

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 on the ground that it was a restriction on the liberty of the press. Similarly, prohibiting newspaper
from publishing its own views or views of correspondents about a topic has been held to be a
serious encroachment on the freedom of speech and expression

Media and the Law: Freedom of Speech or Unbridled Freedom?

What is construed as the media commonly today is not the entire media but only a part of it. The media
includes both the traditional means of mass communication, such as books and pamphlets; nautankies,
puppet shows, street plays, ballads, kirtans, pulpit and platform and the modern stage; small and big
screen motion pictures; radio, print and the electronic media; SMS; Internet etc.

There is a whole range of general laws from the Constitution of India—the Press laws, the
Cinematograph Act, the Indian Penal Code, the Criminal Procedure Code etc. which govern various
forms of the media. In addition to these, there are norms of journalistic ethics prescribed by the Press
Council of India, which govern the newspapers; they are not laws, but professional ethics to be observed
by the print media. There are, however, no such guidelines for the electronic media, since the Press
Council has jurisdiction only over the print media. The electronic media has been consistently resisting
prescription of the ethical code by an independent body like the Press Council. After a great deal of
public pressure, it has now established an internal body—the News Broadcasting Association (NBA)—to
regulate its conduct. Needless to say, the jurisdiction of this body is confined only to those electronic
outfits which submit to its jurisdiction, and the body itself is accountable to those who accept its
jurisdiction and not to the people.

There is no law which can compel a media outlet to give full and fair information or prevent: suppression,
varnishing, garbling and distortion of facts or motivated reportage or mixing comments with facts. Only
journalistic ethics may be invoked against such misconduct. And the body, if any, entrusted with
enforcing the ethics may act against such misdeeds.

Press Council, which is a correcting mechanism and is in existence in many countries, has been
successfully discharging its duties for a long time now and never has one heard of “censorship” against it
in any country. In many countries, either the same body or separate bodies act as correcting mechanisms
for print and electronic media. Secondly, our Press Council, which at present has jurisdiction only over
the print media, is admittedly an independent body and entertains complaints of the media even against

18
the government. Thirdly, most of the Press Councils have a majority of their members representing the
media. Fourthly, the Press Councils entertain complaints against the media for violation of professional
ethics and the law of the land, which are both pre-known. Lastly, the Press Council Act of India has been
enacted to also preserve and protect the independence of press and journalists. It is for this reason that
during the 1975 Emergency the Press Council Act was suspended by the then government. The present
resistance in our country to the so called external body is from the electronic media. They are raising a
bug bear of “Democracy in Danger”.

It is the Supreme Court which freed the airwaves from the monopoly of the government and made them
available to all by its decision in 1993, BCCI v. Union of India. The use of airwaves is of course subject
to constitutional, legal and ethical restrictions.

Trial by Media
The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial under Criminal
Procedure (Amendments to the Contempt of Courts Act, 1971), has recommended a law to debar the
media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of
arrest to investigation and trial.

The commission has said, "Today there is feeling that in view of the extensive use of the television and
cable services, the whole pattern of publication of news has changed and several such publications are
likely to have a prejudicial impact on the suspects, accused, witnesses and even judges and in general on
the administration of justice".

This is criminal contempt of court, according to the commission; if the provisions of the Act impose
reasonable restrictions on freedom of speech, such restrictions would be valid.
It has suggested an amendment to Section 3(2) of the Contempt of Courts Act. Under the present
provision such publications would come within the definition of contempt only after the chargesheet is
filed in a criminal case, whereas it should be invoked from the time of arrest.

In another controversial recommendation, it has suggested that the high court be empowered to direct a

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print or electronic medium to postpone publication or telecast pertaining to a criminal case. On November
3, 2006, former chief justice of India Y K Sabharwal expressed concern over the recent trend of the media
conducting 'trial' of cases before courts pronounce judgments, and cautioned: "If this continues, there
can't be any conviction. Judges are confused because the media has already given a verdict". According to
law an accused is presumed to be innocent till proved guilty in a court of law, and is entitled to a fair trial.
So, it is legitimate to demand that nobody can be allowed to prejudge or prejudice one's case? Why
should judges be swayed by public opinion?

In the US, the O J Simpson case attracted a lot of pre-trial publicity. Some persons even demonstrated in
judges' robes outside the court and lampooned Etoo, the trial judge. Yet, Simpson was acquitted. The
judge was not prejudiced by media campaign or public opinion.

The Supreme Court has ruled in many cases that freedom of the press is a fundamental right covered by
the right to freedom of expression under Article 19 of the Constitution.
But the right to fair trial has not explicitly been made a fundamental right. That does not mean that it is a
less important right. More than a legal right, it is basic principle of natural justice that everyone gets a fair
trial and an opportunity to defend one self.

The NHRC, in its special leave petition filed before the Supreme Court against acquittal of the accused in
the Best Bakery case, contended that the concept of a fair trial is a constitutional imperative recognised in
Articles 14, 19, 21, 22 and 39-A as well as by the CrPC. If there is a clash between the two rights —
freedom of expression and fair trial — which should prevail? It is true that contempt of court is a ground
for restricting the freedom of speech, but the media has not tried to lower the dignity of the judiciary by
exposing loopholes of the investigation and the prosecution and if judicial decisions also appear to be
arbitrary, they must be subjected to ruthless scrutiny. It will be dangerous to gag the press in the name of
contempt of court. If the appellate court feels that the media publicity affected fair trial, it can always
reverse the decision of the lower court.

The Supreme Court's pronouncement in Rajendra Sail case, though given in context of criminal contempt,
provides the proper guideline: "For rule of law and orderly society, a free press and independent judiciary
are both indispensable".

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Conclusion

From the above it can be easily concluded that right to freedom of speech and expression is one of the
most important fundamental rights. It includes circulating one's views by words or in writing or through
audiovisual instrumentalities, through advertisements and through any other communication channel. It
also comprises of right to information, freedom of press etc. Thus this fundamental right has a vast scope.

From the above case law analysis it is evident that the Court has 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). Efforts by intolerant authorities to curb or suffocate this freedom have always been firmly
repelled, more so when public authorities have betrayed autocratic tendencies.

It can also be comprehended that public order holds a lot of significance as a ground of restriction on this
fundamental right. But there should be reasonable and proper nexus or relationship between the restriction
and achievement of public order. The words 'in the interest of public order' include not only utterances as
are directly intended to lead to disorder but also those that have the tendency to lead to disorder.

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Bibliography

 Shorter Constitution of India, 11th edition, D.D.Basu

 Constitution of India – V.N. Shukla; Revised by Mahendra P. Singh; 10th Edition, Eastern Book
Company

 Indian Constitutional Law – M. P. Jain; 5th edition(2003); Volume I & II

 www.practicallawyer.com

 www.legalservicesindia.com

 www.indiankanoon.com

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