FREEDOM OF PRESS

[Mr. M. GOVINDARAJAN]

Freedom of press is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail.  The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions.   James Madison said that the right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of the Government.

Fourth estate

In ‘Printers (Mysore) Limited v. Assistant Commercial Tax Officer’ – 1994 (2) TMI 261 - SUPREME COURT the Supreme Court stipulated that the freedom of press has always been a cherished right in all democratic countries.   The newspapers not only purvey news but also ideas, opinions and ideologies besides much else.  They are supposed to guard public interest by bringing to fore the misdeeds, failings and lapses of the Government described as the Fourth Estate.  The democratic credentials of a State are judged by the extent of freedom the press enjoys in the State.

Freedom cannot be limited

In the above said case the Supreme Court further observed that very often the press, whether out of commercial reason or excessive competition, descends to undesirable levels and may cause positive public mischief but the difficulty lies in the fact that this freedom ‘cannot be limited without being lost’.  It is, however, an evil for which there is no remedy; our liberty depends on the freedom of the press and that cannot be limited without being lost.

Public Interest

The US Supreme Court in ‘Time v. Hill’ – 385 US 374, held that the constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of the people.

In ‘Glaisdale in Attorney-General v. Times Newspapers Limited’ – (1973) 3 ALL ER it was held that the freedom of expression has four broad social purposes to servie-

• it helps an individual to attain self fulfillment;
• it assists in the discovery of the truth;
• it strengthens the capacity of an individual in participating in decision making; and
• it provides a mechanism by which it would be possible to establish a reasonable balance between stability and balance.

All members of the society should 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’.

Strengthening democracy

The press in India has generally contributed to the strengthening of the democracy in the country.  It will have a pivotal role to play for the continued existence of a vibrant democracy in the country.   It is indisputable that the press out of which the visual media in particular wields power, the reach of which appears to be limitless.  No segment of the population is impervious to its influence.

Quality of the content

The right of the press in India is no higher than the right of the citizens under Article 19(1)(a) and is traced to the same provision.  The ability of the truth of the ideas forms much of the basis for the grant of the unquestionable freedom to the Press including media houses.  If freedom is enjoyed by the press without a deepo sense of responsibility, it can weaken the democracy.  In some sections, there appears to be a disturbing trend of bias.  Controlling business interests and political allegiances appear to erode the duty of dispassionate and impartial purveying of information. 

The veteran journalist late Shri Kuldip Nayyar lamented that journalism as a profession has changed a great deal from what it was in his times.  He felt acute sense of disappointment, not only because it has deteriorated in quality and direction but also because he did not see journalist attempting to revive the values once practiced.  The proliferation of newspapers and television channels has no doubt affect the quality of content, particularly reporting.  Too many individuals are competing for the same space.  What appalled him most is that editorial primacy has been sacrificed at the alter of commercialism and vested interests.  It hurts to see many journalists bending backwards to remain handmaidens of the proprietors, on the one hand, and of the establishment on the other. 

Claim of privilege

The claim for privilege may arise in a system of law where there is no statutory framework provided for such a claim.  It has been considered to be the position in the United Kingdom.  In India, section 123 of the Evidence Act read with section 124 and section 126 does provide for the statutory basis for a claim of public interest privilege.

In ‘Yashwant Sinha v. Central Bureau of Investigation’ – 2019 (6) TMI 621 - SUPREME COURT a preliminary objection with regard to the maintainability of the review petition has been filed by the CBI.  It is contended that the review petition lacks in bona fides inasmuch as three documents unauthorizedly removed from the office of the Ministry of Defence, Government of India, have been appended to the review petition.  The said three documents in question are-

• An 8 page note written by three members of the Indian Negotiation Teach (INT) charged in reference to the Rafale Deal (note dated 01.06.2016);
• Note-18 of the Ministry of Defence (Government of India), F.No. AIR HQ/S/96380/3/ASR PC-XXVI (Marked secret under the Official Secrets Act);
• Note – 10 written by S.K. Sharma (Deputy Secretary, Ministry of Defence, Air-III) Note dated 24.11.2015 (market secret under the Official Secrets Act).

The said three documents have been published in ‘The Hindu’ by three times and thus made available in public domain.  It was contended that-

• The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech.
• No law was enacted by Parliament specifically barring or prohibiting the publication of such documents on any grounds mentioned in Article 19(2) of the Constitution.
• The publication of the said documents in ‘The Hindu’ is on line with the freedom of press.

The respondent contended that there are certain State actions that are outside the purview of judicial review which lie within the political domain.  The present would be such a case.  If this case is kept alive there will be the potential to threaten the security of each and every citizen residing within our territories.  The respondents prayed the court to dismiss the petition in limini.

The Supreme Court found that the documents in question have been published in

‘The Hindu’ a national daily.  They have not been officially published.  The correctness of the contents per se of the documents is not questioned.  The case does not strictly involve in a sense the claim for privilege as the petitioners have not called upon the respondents to produce the original and the State does not take objection to the correctness of the contents of the documents.  The request of the respondents is to remove the documents from the record. 

The Supreme Court held that it is proper to dismiss the preliminary objections raised by the respondents questioning the maintainability of the review petitions and held and affirmed that the review petitions will have to be adjudicated on their own merit by taking into account of the contents of the three documents, admissibility of which, in the judicial decision making process, has bene sought to be questioned by the respondents in the review petitions.