CHAPTER 1
CHAPTER 1
CHAPTER 1
INTRODUCTION
1.1 Introduction
The right to freedom of speech and expression and role of media in Indian Democracy,
and also to study the intention of the framers of the Indian Constitution to insert Art 19(1) (a).
Speech is a very unique gift by the God to the human being , through which human being
conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is a
natural human right which is acquired by the human being from his birth. Such a divine right of
freedom of speech and expression is guaranteed to the citizens by almost all the democratic civil
societies. However, in the modern era throughout the world, right to freedom of speech and
expression is not limited to one’s views, thoughts through the words but also includes media or
the press or through any other communicable channel. Judiciary plays a key role in expanding
the domain of freedom of speech and expression to new facets like right to information, right to
freedom of press, right to circulate, right to advertisement, right to keep silence etc.1
World’s two biggest democracies, America and India have remarkably protected this
right to freedom of speech and expression. As for as Indian Constitution is concerned this
important right is mentioned in Article 19(1)(a) which is guaranteed under Part III in
fundamental rights category. Unlike American Constitution, in India it is not expressly
mentioned that the freedom of speech and expression includes freedom of Press or media.
Regarding non mentioning expressly of free press or media in Art 19(1) (a), Dr. B.R. Ambedkar,
Chairman of the Draft Committee argued that no special mention of freedom of press was
necessary at all, as the press and an individual or a citizen were the same as for as their right to
expression was concerned.2
Thus Indian Constitution framers considered freedom of the press as an essential part of
speech and expression as guaranteed in Art. 19(1) (a) of the Constitution. Indian
1
A.H. Hanson, “India’s Democracy”, 45 (Vikas Publishing House Pvt. Ltd, 1st edn. 1972).
2
Id, at 1
Judiciary always placed a broad interpretation on the value and content of Article 19(1) (a),
while making subjective only to the retractions permissible under Article 19(2)
As once Justice Patnajali Shastri observed, “Man as a rational being desires to do many
things, but in a civil society his desires will have to be controlled with the exercise of similar
desires by other individuals”. It means that like the other rights guaranteed by the Constitution, it
is not absolute but is subject to limitations that can be imposed by law, in various Supreme
Court verdicts, it is mentioned that such limitations imposed on freedom of speech and
expression must be on reasonable grounds as mentioned under Article 19 (2); interest 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.3
Democracy
Abraham Lincoln had defined democracy as a government "of the people, by the
people, and for the people."4
3
Alexander Barker, “Democracy in the Dominions”, 12-19 (University of Toronto Press, 2 nd edn. 2002).
4
Id, at 3
the law, due process of law, Constitutional limits on government, Social, economic, and political
pluralism, and Values of tolerance, pragmatism, cooperation, and compromise.
Democracy has taken a number of forms; both in theory and practice, but there
are two basic forms, both of which concerned how the whole body of all eligible citizens
executes its will. First form of democracy is direct democracy, in which all eligible citizens have
active participation in the political decision making process, for example voting on policy
initiatives directly. In most modern democracies, the whole body of eligible citizens retains
the sovereign power but political power is exercised indirectly through elected representatives;
this is called a representative democracy. Representative democracy can again be found
in two forms: Parliamentary form of Democracy and Presidential form of Democracy. Under a
parliamentary democracy, government is exercised by delegation to an executive ministry
subject to ongoing review, checks and balances by the legislative parliament elected by the
people, whereas in Presidential democracy the public elect the President through free and fair
elections. The President serves as both the head of the State as well as Head of Government,
controlling most of the executive powers. The President serves for a specific term and cannot
exceed that term of office. Elections typically have a fixed date and are not easily changed. The
President has direct control over the cabinet, specifically appointing the cabinet members.5
Throughout the world, there exist some democracies which combine both the elements
of representative democracy and direct democracy, which are termed hybrid democracies.
These variable democracies are Constitutional monarchy democracy, Republic democracy,
Liberal democracy, Socialist democracy, Anarchist democracy, Sortation democracy,
Consociation democracy, Consensus democracy, Supranational democracy, Inclusive
democracy, Participatory Politics democracy, Cosmopolitan democracy, Creative Democracy. 6
India is a Republic of India and the largest democracy in the world. India is the seventh
largest (by area) and the second most populous country. The world's largest democracy by
electorate was created after independence in 1947. Elections to its Parliament are held once
every 5 years. India is a Constitutional Republic governed under the world's longest written
Constitution, federally consisting of 29 States and seven centrally administered territories.
5
Ibid
6
Id, at 5
The country has national parties. Many regional parties contest in the elections to State
legislatures, every five years. The Rajya Sabha elections are held every 6 years.
The Universal Declaration of Human Rights (1948) proclaims that "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
7
R. ANDERSEN, “Critical Studies in Media Commercialism”, 74 (Oxford University press, 1st edn. 2000).
8
Id, at 7
regardless of frontiers". The people of India, as they declared in the Preamble of the
Constitution, which they gave unto themselves, that their resolution to secure to all the citizens
liberty of thought and expression is a basic human right. This resolution is reflected in
Article 19(1) (a) which is found in Part III of the Constitution, which enumerates the
Fundamental Rights.
India is a democratic country, and the people of India are to exercise their sovereign
power through a parliament at the Centre and a legislature in each State, which is to be elected
on universal adult franchise and to which the real executive, namely, the council of ministers,
shall be responsible. It is essential that people should be allowed to participate in the political
system.9
The freedom of speech and expression laid the foundation of all democratic
organizations. Without free political discussion, no public education so essential for the
proper functioning of the process of popular government is possible. Freedom of expression
(which includes the freedom of press) helps the individual to attain self fulfillment and
strengthens the capacity of individual in participating in decision making process. It assists in
discovery of truth and provides a mechanism by which it would be possible to establish a
reasonable balance between stability and social change.
Article 19(1) (a) of the Constitution of India guarantees to all citizens the right to
„freedom of speech and expression‟. The freedom of speech and expression means the right to
express one’s views, convictions and opinions at any issue freely through any medium, e.g. by
words of mouth, writing, printing, films, pictures, movies etc. The expression, freedom of speech
and expression‟ in Article 19(1) (a) has been held to include the right to acquire information and
disseminate the same. It includes the right to communicate it through any available media
whether print, electronic, or audiovisual, such as, advertisement, movie, article or speech,
etc.10
9
Rubin Bernard, “Media Politics, Democracy”, 45 (Oxford University Press, 1st edn. 2001).
10
Id, at 9
on the later. Participation in Government by the people is regarded as an important aspect of
democracy and people cannot participate unless they have information as to what is going on in
the country. Government from village to central level is accountable to the people and they have
right to know as to what the government is doing and how it is doing and why it is doing i.e. they
are entitled to know what policies and programs, how and why, are being followed by the
Government. In other words, in a democratic country, every citizen contributes to the
government treasury by paying taxes, directly or indirectly and has the right to know what
happened with the money contributed by him into nation’s treasury. A modern democratic State
is being answerable to the people. People have to pass verdict every five years on the
performance of the Government and decide whether it should stay in office or not. People cannot
exercise their choice intelligently unless they are given adequate information about the functional
openness by the Government.9 A Government which is not open may be tempted to commit
administrative misconduct. Since power tends to corrupt and absolute power tends to corrupt
absolutely, there is an inherent danger that the vast power to the executive may be used not for
public good but for private gain or for corrupt motive. It is, therefore, essential that the people
have as much information about the Government operation as possible. Openness in Government
is bound to act as powerful check on the abuse or misuse of power by the Government. Justice
P.N. Bhagwati observed in S.P. Gupta v. Union of India,11: “Open Government is the new
democratic culture of a society toward which every liberal democracy is moving and our
country should be no exception.”12
The fundamental right of the freedom of press implicit in right of freedom of speech
and expression is essential for the political liberty and proper functioning of democracy. The
Indian Press Commission says "Democracy can thrive not only under the vigilant eye of
legislature, but also under the care and guidance of public opinion and the press is par
excellence, the vehicle through which opinion can become articulate." Unlike the American
Constitution, Art. 19(1) (a) of the Indian Constitution does not expressly mention the liberty
of the press but it has been held by the judiciary in a catena of decisions that liberty of the press
is included in the freedom of speech and expression. The editor of a press or the manager
is merely exercising the right of the expression, and therefore, no special mention is necessary of
11
S.P. Gupta v. Union of India, AIR 1982 SC, 149.
12
Id, at 11
the freedom of the press. Freedom of press is the heart of social and political intercourse. It is the
primary duty of the courts to uphold the freedom of press and invalidate all laws or
administrative actions, which interfere with it contrary to the Constitutional mandate.
The word „media‟ is derived from the word medium, signifying mode or carrier. Media
is intended to reach and address a large target group or audience. The word was first used in
respect of books and newspapers i.e. print media and with the advent of technology, media now
encompasses television, movies, radio and internet. In today’s world, media becomes as essential
as our daily needs. Media of today is playing an outstanding role in creating and shaping of
public opinion and strengthening of society.13
Media is the sword arm of democracy. Media acts as watchdog to protect public
interest against malpractice and create public awareness. Today when politicians are taking full
advantage of their positions, an evil nexus of mafia and crime syndicate is making the life of the
common man miserable, taxpayer’s money is siphoned out for the personal gain of the influential
while ordinary people are mere spectators. Media has a greater responsibility as the fourth pillar
of democracy along with judiciary, executive and legislature. Media of today has an all
embracing role to act against the injustice, oppression, misdeeds and partiality of our society.
From the earliest days, media has remained an integral part of human civilization. From
the days of Vedas and Upanishads to edicts of kings and emperors like Chandragupta, Asoka to
the medieval Indian mass gatherings to the modern day‟s audio video and print media, media has
always played a pivotal role in shaping the society. During the days of freedom struggle,
newspapers like Tilak’s Maratha, Keshari, M. K. Gandhi’s Young India, Harijan, etc.
acted as a platform to place the demands of common Indian and to express solidarity with
freedom fighters. Indian media in post-independence era has grown up phenomenally and today
comprises of more than 50,000 newspapers, hundreds of television and radio channels.14
In this era of liberalization, privatization and globalization (LPG) the world has reached
the drawing rooms, thanks to media. Since the introduction of television in our country in late
13
R. K. Bhardwaj, “Democracy in India”, 45 (National Publication, Delhi, 1st edn. 2001).
14
Id, at 13
70s visual media becomes a very potential tool in informing the current news to the society,
entertaining the people and shaping up of public opinion. The World Wide Web and web 2.0
technologies have given rise to electronic media where even a common man can express views
through blogs, website posts, Facebook, Twitter and the like social media. Coupled with
traditional print media all these audio video and social media caters to a richly diversified media
industry in India.15
In modern society, the role of media can never be overvalued, from morning to night the
human mind is exposed to it. Naturally it affects a modern man forcefully. There are various
forms of media but the most popular ones are print media and audio-visual media. All news
papers, magazines and printed advertisements form the print media while films, radio and
televisions are included in audio-visual media. There is no need to mention that on the one hand
countless newspapers, magazines and printed advertisements are circulated daily and on
the other there are thousands of programs on radio and television with numerous films in
theatres. In a modern society the media do not work independently because it is dominated
by powerful, selfish and greedy businessmen and politicians who wish to fill human mind with
stuff suitable to their mean ends.16
Manifestation of ideas and policies is the main role of media. In a democratic society
there are a number of political parties with different policies and objects. Through media they get
15
A. Chekki Dan, “Participatory Democracy in Action”, 41 (Vikas Publication, 5th edn. 2005).
16
Id, at 15
an opportunity to publish their view-point regarding solution of serious national and international
problems. They make promises to be fulfilled if they come to power. Media provides, a strong
platform to evaluate policies of the ruling party and its working. The ruling party and its
ministers also give press-statements to justify their actions. Thus, they too depend on media.
During the elections, media become so important that reporters are treated as V.I.P.s.17
It has been noticed that in recent years the power of media is being misused. It is being
employed for spreading misinformation and confusion. Even advertising is not that honest.
Things of poor quality are being sold at a very high rate on the basis of attractive advertisements.
The young ones having immature minds fall victim to such advertisements and begin to insist
on buying or using a certain product of a particular brand only, because its interesting
advertisements have impressed their minds. Not only the young ones but quite grown up people
too get misguided by these advertisements, which turn them to a sort of listening people who do
not apply their own brain but credulously accept whatever is claimed. Political misuse of media
was made. During the emergency of 1976-78 in India political misuse of media was rampant in
the country.18
17
Durga Das Basu (1999), “Introduction of Constitution of India”,63 (Publisher Wadhawa and company, law
and publisher Nagpur, 1st edn. 1999).
18
Id, at 17
Thus, role of media is very important in a modern society. Now with the
introduction of Internet-services, even a common man is being exposed to international
knowledge. No doubt media is growing more and more important in our life.
Indian Constitution does not expressly provide for the freedom of media (press).
However, it is now well settled fact that the word “speech and expression” in Art 19 (1)
(a) includes the freedom of media. Freedom of “expression‟ means the freedom to express not
only one’s own views but also the views of others. But since the freedom of expression is not an
absolute freedom and is subject to the limitations contained cl. (2) of Art. 19, laws may be
passed by the State imposing reasonable restrictions on the freedom of the press (media) in the
interest of the State for the security of the State and sovereignty and integrity of India, friendly
relations with foreign States, public order, decency or morality, or prevention of contempt of
court, defamation or incitement to an offence. In recent times the Right to information as a
fundamental right is read by the judiciary into Art 19 of Indian Constitution. This study
discussed role of media providing information to people and get participation involvement and
control over State activity.
This study reviewed laws relating to media, its rights and responsibility towards society.
In present research the researcher has tried to find the use of right to speech and
expression by the people of India by receiving Information from the media and its effect on
society and legal system.
Lastly, certain suggestions to media are made for the sake of social welfare, to preserve
morality and unity among the citizens.
1.3 Significance of the study
The present work is based upon Doctrinal Research Methodology; the researcher has
made an intensive as well as extensive study of concept of democracy, freedom of speech and
expression, and media. The present study endeavors to see the role of media in Indian democracy
in the light of right to freedom of speech and expression which is guaranteed under Indian
Constitution under the provision of Art. 19(1) (a).
Being library based work; Literature for this study has been collected from various
primary as well as secondary sources. Primary sources include Indian Statutes, Rules,
Regulations, Constituent Assembly Debates, Reports of the Working Committees, Standing
Committees and Cabinet Committees, judgments of the various High Courts and the Supreme
Court, bare provisions of the Constitution and recommendations of the reports. Secondary
sources include books of the eminent authors, national as well as international articles in research
journals, magazines, articles or editorials in various newspapers, notes and publications of
internet and official websites etc. On the basis of the present study, suitable modifications,
alterations have been suggested for proper and effective role of media in Indian democracy.
1.7 Literature Review
A.H. Hanson, in his book, “India’s Democracy”, (1972), in this view of book, India's
democracy is one of the most significant and vibrant political systems in the world. India,
officially known as the Republic of India, is the world's largest democracy by population, with a
diverse and multi-ethnic society comprising more than 1.3 billion people. India follows a federal
parliamentary democratic system. The Constitution of India, adopted on January 26, 1950,
outlines the rights and duties of citizens, the structure of government, and the distribution of
powers between the central government and the states. All adult citizens of India, regardless of
gender, caste, or religion, have the right to vote in elections. This inclusive suffrage is a
fundamental aspect of India's democracy. India conducts periodic elections at the national, state,
and local levels. General elections are held every five years to elect members of the Lok Sabha
(the lower house of the Parliament) and state legislative assemblies.
Alexander Barker, in his book, “Democracy in the Dominions”, (2015), of this book,
"Democracy in the Dominions" refers to the historical development of democratic systems in the
former British Dominions, which were self-governing territories within the British Empire. The
term typically encompasses the countries that eventually became fully independent nations and
are now known as Commonwealth realms. The British Dominions were territories that were
granted significant autonomy in their internal affairs but were still part of the British Empire. The
Dominions included countries such as Canada, Australia, New Zealand, South Africa, and later,
India, Pakistan, Ceylon (now Sri Lanka), and others. The process of establishing democracy in
these Dominions varied depending on the specific historical context of each country. However,
there were some common elements in the evolution of democratic governance in these regions,
Prior to becoming Dominions, many of these territories were colonies under direct British rule.
The governance was primarily based on British colonial administration, which often featured
limited democratic representation for the local population.
Bernard Rubin, in his book, “Media Politics, Democracy”, (1977), of this view of book,
Media, politics, and democracy are interconnected and play crucial roles in shaping societies and
governance. Here's a brief overview of their relationship, Media refers to the various channels
through which information and news are disseminated, such as television, radio, newspapers,
magazines, and online platforms. In the realm of politics, the media plays a vital role in
informing the public about political events, policies, and the actions of political leaders.
Politicians and political parties use the media to communicate their messages and agendas to the
electorate, especially during election campaigns. Media coverage can significantly influence
public opinion and, in turn, impact political outcomes. The relationship between politicians and
the media can be complex, with both sides trying to control the narrative to their advantage.
1.8 Limitation of the Study
This study aims to critically examine the state of freedom of speech and expression in
India and explore the role of media in upholding or challenging this fundamental right. It will
delve into the legal framework surrounding freedom of speech and expression in India and
analyze various instances where media has played a pivotal role in shaping public discourse. The
study will also highlight the limitations and challenges faced by both media and individuals
exercising their right to freedom of speech and expression in the Indian context.
1.9 Chapterization
The present study, A Critical Study on “Right to freedom of speech and expression and
role of Media in Indian Democracy” has been presented in seven chapters dealing with different
conceptual aspects of Democracy, right to freedom of speech and expression, and the Media.
CHAPTER:6 deals with the Indian Judiciary in the Area of Right to Freedom of Speech
and Expression and Media, which cover, media importance in democracy and its need,
freedom of speech and expression available U/Art. 19(1) (a) to the media, judiciary as a
protector of freedom of media in different issues i.e. fixation of minimum pages, levy duty or tax
on newspaper, commercial advertisement, pre-stoppage of publication etc.