Module-Ii: Media and The Constitutional Framework
Module-Ii: Media and The Constitutional Framework
Module-Ii: Media and The Constitutional Framework
S.P. Gupta Vs. Union of India [(1981) Suppl. SCC Page 87]
Bhagwati, J. Observed
Peoples’ right to know about governmental affairs was emphasized in
the following words:
“No democratic Government can survive without accountability and the
basic postulate of accountability is that the people should have
information about the functioning of the Government.”
Right to criticise
Right to rebuttal
Compelled speech
Right to circulate
• Right to free speech and expression includes the right not only to
publish but also to circulate information and opinion.
• In Sakal Paper v. Union of India, AIR 1962 SC 305 the Supreme Court
held that the State could not make any laws which directly affected
the circulation of a newspaper for that would amount to a violation
of the freedom of speech.
• In Bennett Coleman & Co. Vs. Union of India, AIR 1973 SC 106, the
SC held that newspapers should be left free to determine their pages
and their circulation. This case arose out of a constitutional challenge
to the validity of the Newspaper (Price and page) Act, 1956 which
empowered the government to regulate the allocation of space for
advertisement matter.
• In LIC Vs. Manubhai Shah, AIR 1992 SCC 637 the SC held(reiterated)
that the ‘freedom of speech and expression’ must be broadly
constructed to include the freedom to circulate one’s views by word
or mouth or in writing or through audio visual media.
Right to criticise
• For a healthy democracy
• In, Romesh Thappar Vs. State of Madras AIR 1950 SC 124, the SC noted that criticism of the
government was not to be regarded as a ground for restricting the freedom of speech or
expression. Free political discussion= public education.
• In a leading American case, Terminiello V. Chicago, (1948) 93 L Ed 1131, the rational behind
the freedom of speech and expression was explained [A] function of free speech under our
system of government is to invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they are, or even
stirs the people to anger.
• Kedar Nath Singh Vs. State of Bihar, AIR 1962 SC 955., arose out of a constitutional
challenge to Sections 124-A and 505 of the Indian Penal Code,1860 which penalise attempts
to excite disaffection towards the government by words or in writing and publications which
may disturb public tranquillity(calmness). The SC dismissed the challenge but clarified that
criticism of public measures or comment on government action, however strongly worded,
would be within reasonable limits and would be consistent with the fundamental right of
freedom of speech and expression.
Right to receive information
The freedom of speech and expression comprises not only the right to express, publish and
propagate information through circulation but also to receive information.
• Watchdog role: Playing a crucial role in evaluating the policies and actions of the
Government
• Welfare Service Delivery: Providing necessary institutional basis for service delivery.
• Reform and Social Change: Serve as an instrument for reform and social change
Core Principles
Principle 1 - Maximum proactive disclosure
Principle 2 - Obligation to publish
Principle 3 - Promotion of open government
Principle 4 - Limited scope of exemptions
Principle 5 - Processes to facilitate access
Principle 6 - Reasonable costs
Principle 7 - Disclosure takes precedence
Right to expression beyond national boundaries
The question whether an Indian citizen’s right to freedom
of speech and expression extends beyond the
geographical limits of India was considered by the SC in
Menaka Gandhi vs. UOI, AIR 1978 SCC 248.
The case concerned a challenge to Section 10(3)(c) of the
of the Passport Act, 1967 which permitted a passport to
be impounded ‘in the interest of the general public’.
One aspect of the challenge was that the The court considered whether Article 19 (1)(a)
provision infringed Article 19(1)(a) since it was confined to Indian territory, and whether
precluded the petitioner from exercising her such right could be said to have been violated
right to free speech and expression abroad. in the present case.
The court held that the freedom of speech and expression was not
confined to national boundaries and a citizen had the right to exercise
that right abroad.
Right of the press to conduct interviews
Constitutional restrictions on the freedom of
speech and expression
• Sovereignty and integrity of India
• Security of the state
• Friendly relations with foreign States
• Public order
• Decency and morality
• Contempt of court
• Defamation
• Incitement to an offence
1. Sovereignty and integrity of India
• Chinese demanded a separate north east in 1960.
• Strong demand by Master Tara Singh for a separate Sikh
homeland.
• The Dravida Munnetra Kazhagam (DMK) had called for an entity
separate from India called Dravida Nadu comprising Madras,
Mysore, Kerala and Andhra.
The amendment enabled the enactment of laws such as the
Criminal Law Amendment Act, 1961 and the Unlawful Activities
(Prevention) Act, 1967 which made punishable the act or words of
any individual or association intending or supporting ‘the giving up
of any part of the territory of India or the secession’ of the same.
2. Security of the State and Public order
• In State of Bihar v. Shailabala Devi, AIR 1952 SC 329
while interpreting Sction 4(1)(a) of the Press
(Emergency Powers) Act, 1931 dealing with words,
signs or visible representation which incite or
encourage or tend to incite or encourage the
commission of any speech or expression which
incites or encourage the commission of violent
crimes such as murder, undermines the security of
the State and falls within the ambit of Article 19 (2).
Judicial recognition of the right to
information
• It was a creative interpretation of Article 19(1)(a)
of the Constitution that the SC carved out a
fundamental right to information as being implicit
in the right to free speech and expression.
• This right is of special importance to the media
whose lifeline is information and whose lifeline is
information and whose business it is to
communicate information to the electorate so that
the latter may make informed choices.
Romesh Thappar v. State of Madras,AIR 1950
SC 124
• The petitioner challenged an order issued by the then
Government of Madras u/s 9(1-A) of the Madras
Maintenance of Public Order Act, 1949 imposing a ban on
the circulation of the petitioner’s journal Cross Roads.
• The order was struck down as being violative of the right to
freedom of speech and expression under Article 19(1)(a).
• The SC held that freedom of speech and of the press lay at
the foundation of all democratic organisations.
• Without free political discussion, public education, and
proper functioning of the Government is impossible.
The campaign for a legislation on the right to
information
• Laws on the right to information were first enacted in the
Scandinavian countries and in the USA in the 1960s thereafter, in
other countries including Canada, New Zealand and Australia.
• In India, some states such as Goa, Tamil Nadu, Rajasthan, MP,
Karnataka, Maharastra, Delhi, and Assam introduced laws on the
subject between the mid-1990s and 2003.
• The Central Government finally followed suit and came out with
a draft bill called the Freedom of Information Bill,2000 which
was passed by Parliament in December 2002.
• The freedom of Information Act,2002 was later substituted by
the Right to Information Act, 2005.
Salient features of the Right to Information
Act, 2005
• Maintenance of records
Sec 2(i) All the public authorities are under an obligation to maintain their
records.
Sec 4(1)(b) All public authorities are required to publish specified
information about their functioning within a period of 120 days from the
enactment of the Act.
• Duty to publish
Section- 4 (2): It shall be a constant endeavour of every Public Authority
to take steps in accordance with the requirements of clause (b) of sub-
section (1) of section- 4 to provide as much information suo motu to the
public at regular intervals through various means of communications,
including internet, so that the public have minimum resort to the use of
this Act to obtain information.
• Establishment of Information Commission
Sec.12 constitution of Central Information
Commission.
Sec.15 constitution of State Information
Commission
The United Nations1948
Universal Declaration of Human Rights
states: "Everyone has the right to freedom of
opinion and expression; this right includes
freedom to hold opinions without interference,
and impart information and ideas through any
media regardless of frontiers"
INTERPRETATION OF MEDIA FREEDOM
• Freedom of the press or freedom of the media is the freedom of communication and
expression through mediums including various electronic media and published materials
. While such freedom mostly implies the absence of interference from an over reaching
state, its preservation may be sought through constitutional or other legal protections.
• With respect to governmental information, any government may distinguish which
materials are public or protected from disclosure to the public based on
classification of information as sensitive, classified or secret and being otherwise
protected from disclosure due to relevance of the information to protecting the
national interest. Many governments are also subject to sunshine laws or
freedom of information legislation that are used to define the ambit of national interest.
• The United Nations' 1948 Universal Declaration of Human Rights states: "Everyone has
the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference, and impart information and ideas through any media
regardless of frontiers"
• This philosophy is usually accompanied by legislation ensuring various degrees of
freedom of scientific research (known as scientific freedom), publishing, press and
printing the depth to which these laws are entrenched in a country's legal system can go
as far down as its constitution. The concept of freedom of speech is often covered by
the same laws as freedom of the press, thereby giving equal treatment to spoken and
published expression.
ISSUES OF PRIVACY, MEDIA AND THE LAW