The Lawmatics Freedom of Press Series
Art. 19 (1) (a) guarantees to all citizens the right to freedom of speech and expression. it has, however, got to be read along with Art. 19 (2) which lays down certain constitutionally permissible limitations on the exercise of that right. Art. 19 (2) as substituted by the Constitution (First Amendment) Act, 1951, with retrospective effect reads as under:
“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 right conferred by the said sub-clause in the interests of 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.”
If any limitation on the exercise of the fundamental right under Art. 19 (1) (a) does not fall within the four corners of Art. 19 (2) it cannot be upheld.
Freedom of speech and expression includes within its scope the freedom of the press.
The General Meaning of Freedom
To be free is to have the use of one’s powers of action (i) without restraint or control from outside and (ii) with whatever means or equipment the action requires.
The primary suggestion of the term freedom is the negative one, the absence of external interference whether to suppress or to constrain. To be free is essentially to be free from something-some arbitrary impediment to action, some dominating power or authority. But since freedom is for action, and action is for an end, the positive kernel of freedom lies in the ability to achieve the end; to be free means to be free for some accomplishment. And this implies command of the means to achieve the end. Unless the equipment necessary for effective action is at hand, unrestraint may be a mockery of freedom……………… Unrestraint without equipment is not liberty for any end which demands equipment.
Resulting Conception of Freedom of the Press
As with all freedoms, press freedom means freedom from and freedom for a free press free from compulsions from whatever source, governmental or social, external or internal. From compulsions, not from pressures; for no press can be free from pressures except in a moribund society empty of contending forces and beliefs. These pressures, however, if they are persistent and distorting-as financial, clerical, popular, institutional pressures may become-approach compulsion; and something is then lost from effective freedom which the press and its public must unite to restore.
A free press is free for the expression of opinion in all its phases. It is free for the achievement of those goals of press service on which its own ideals and the requirements of the community combine and which existing techniques make possible. For these ends it must have full command of technical resources, financial strength, reasonable access to sources of information at home and abroad, and the necessary facilities for bringing information to the national market. The press must grow to the measure of this market.
The liberty of circulation
The first case which came up for decision before supreme court was that of Ramesh Thaper v. The State of Madras[1]. It was a case of a ban on the entry and circulation of the appellant’s journal in the State of Madras under the provisions of section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949, and it was observed by Patanjali Shastri J. (as he then was) at p. 597:
“There can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.” Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value.”
Brij Bhushan & Anr. v. The State, of Delhi[2] was the next case which came up for decision before the Court and it concerned the constitutionality of section 7 (i)(e) of the East Punjab Public Safety Act, 1949. It was a provision for the imposition of pre-censorship on a journal. Patanjali Sastri J. (as he then was) who delivered the majority judgment observed at p. 608: –
“There can be little doubt that the imposition of precensorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Art. 19 (1) (a). As pointed out by Blackstone in his Commentaries “the liberty of the Press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he Pleases before the public; to forbid this, is to destroy the freedom of the press.[3]
The inspiration from American Constitution
Amendment I of American Constitution lays down:
“Congress shall make no law……………… abridging the freedom of speech or of the press …………”
It is trite to observe that the fundamental right to the freedom of speech and expression enshrined in Art. 19(1)(a) of our Constitution is based on these provisions in Amendment I of the Constitution of the United States of America and it would be therefore legitimate and proper to refer to those decisions of the Supreme Court of the United States of America in order to appreciate the true nature, scope and extent of this right.
Grosjean v. American Press Co.,[4] was a case where a statute imposed a license tax on the business of publishing advertisements and it was observed at p. 668:
“The evils to be prevented were not the censorship of the press merely, but any action of the Government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise, of their rights as citizens.”
The statute was there struck down as unconstitutional because in the light of its history and of its present setting it was seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public was entitled in virtue of the constitutional guarantees.
The following passage from the dissenting opinion in The Associated Press v. The National Labour Relations Board[5] is also instructive:
“If the freedom of the press does not include the right to adopt and pursue a policy without governmental restriction, it is a misnomer to call it freedom. And we may as well deny at once the right to the press freely to adopt a policy and pursue it, as to concede that right and deny the liberty to exercise an uncensored judgment in respect of the employment and discharge of the agents through whom the policy is to be effectuated.”
It was also observed there at p. 965:
“Due regard for the constitutional guarantee requires that the publisher or agency of the publisher of news shall be free from restraint in respect of employment in the editorial force.”
Schneider v. Irvingtor[6] was concerned with the effect of the Municipal Regulations against littering of streets. In the course of its decision the Court made the following observations at p. 164:
“This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free press. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties.”
Non-interference by the State with this right was emphasized in Thomas v. Collins[7] at p. 448:-
“But it cannot be the duty, because it is not the right, of the State to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any Government to separate the true from the false for us………..”
It is clear from the above that in the United States of America:
(a) the freedom of speech comprehends the freedom of press and the freedom of speech and press are fundamental personal rights of the citizens;
(b) the freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public;
(c) Such freedom is the foundation of free Government of a free people;
(d) the purpose of such a guarantee is to prevent public authorities from assuming the guardianship of the public mind and
(e) freedom of press involves freedom of employment or non- employment of the necessary means of exercising this right or in other words, freedom from restriction in respect of employment in the editorial force.
This is the concept of the freedom of speech and expression as it obtains in the United States of America and the necessary corollary thereof is that no measure can be enacted which would have the effect of imposing a pre- censorship, curtailing the circulation or restricting the choice of employment or unemployment in the editorial force. Such a measure would certainly tend to infringe the freedom of speech and expression and would therefore be liable to be struck down as unconstitutional.
Press is also not free from regulations
The press is however, not immune from the ordinary forms of taxation for support of the Government nor from the application of the general laws relating to industrial relations. It was observed in Grosjean v. American Press Co.[8]:
“It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the Government; But this is not an ordinary form of tax but one single in kind with a long history of hostile misuse against the freedom of the press.
The predominant purpose of the grant of immunity here invoked was to preserve an untrammelled press as a vocal source of public information. The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most patent of all restraints upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with gave concern.
The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad: Because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guarantees. A free press stands as one of the great interpreters between the Government and the people. To allow it to be fettered is to fetter ourselves.”
In The Associated Press v. National Labour Relations Board[9], it was held that the freedom of the press safeguarded by the First Amendment was not abridged by the application in the case of an editor employed by the Associated Press to determine the news value of the items received and to rewrite them for transmission to members of the association throughout the United States who must function without bias and prejudice, of the provisions of the National Labour Relations Act which inhibited an employer from discharging an employee because of union activities.
It was further observed at p. 960:
“So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press. We think that the contention not only has no relevance to the circumstances of the instant case but is an unsound, generalization.”
Murdock v. Pennsylvania[10], was a case of a license fee for the sale of religious books and Mr. Justice Frankfurter in his dissenting opinion at p. 1311 observed:
“A tax upon newspaper publishing is not invalid simply because it falls upon -the exercise of a constitutional right. Such a tax might be invalid if it invidiously singled out newspaper publishing for bearing the burden of taxation or imposed upon them in such ways as to encroach on the essential scope of a free press. If the Court could justifiably hold that the tax measures in these cases were vulnerable on that ground, I would unreservedly agree. But the Court has not done so, and indeed could not. “
In Oklahoma Press Publishing Co. v. Walling[11], and in Mabee v. White Planis Publishing Co.[12] the Federal Fair Labour Standards Act was held applicable to the press and it was observed in the former case at p. 621:
“Here there was no singling out of the press for treatment different from that accorded other business in general. Rather the Act’s purpose was to place publishers of newspapers upon the same plane with other businesses and the exemption for small newspapers had the same object. Nothing in the Grosjean case (supra), forbids Congress to exempt some publishers because of size from either a tax or a regulation which would be valid if applied to all.”
The Constitution of the United States of America–Analysis and Interpretation-Prepared by the Legislative Reference Service, Library of Congress, summarises the position thus at p. 792:
“The Supreme Court, citing the fact that the American Revolution ” really began when…………… that Government (of England) sent stamps for newspaper duties to the American colonies ” has been alert to the possible uses of taxation as a method of suppressing objectionable publications. Persons engaged in the dissemination of ideas are, to be sure, subject to ordinary forms of taxation in like manner as other persons. With respect to license or privilege taxes, however, they stand on a different footing. Their privilege is granted by the Constitution and cannot be withheld by either State or Federal Government. The application to newspapers of the Anti-Trust Laws, the National Labour Relations Act, or the Fair Labour Standards Act, does not abridge the freedom of the press.”
The Laws regulating payment of wages have similarly been held as not abridging the freedom of speech and expression.
But No unnecessary restraint on freedom of press
While therefore no such immunity from the general laws can be claimed by the press it would certainly not be legitimate to subject the press to laws which take away or abridge the freedom of speech and expression or which would curtail circulation and thereby narrow the scope of dissemination of information, or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid.
Laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media, prevent news- papers from being started and ultimately drive the press to seek Government aid in order to survive, would therefore be struck down as unconstitutional.
Such laws would not be saved by Art. 19(2) of the Constitution. Supreme Court had occasion to consider the scope of Art. 19(2) in Brij Bhushan & Anr. v. The State of Delhi (supra), where Fazl Ali J. in his dissenting judgment observed at p. 619,
“It must be recognized that freedom of speech and expression is one of the most valuable rights guaranteed to a citizen by the Constitution and should be JEALOUSLY GUARDED by the Court. It must also be recognised that free political discussion is essential for the proper functioning of a democratic government, and the tendency of the modern jurists is to deprecate censorship though they all agree that “liberty of the press” is not to be confused with its” licentiousness. But the Constitution itself has prescribed certain limits and this Court is only called upon to see whether a particular case comes within those limits.” Unless, therefore, a law enacted by the Legislature comes squarely within the provisions of Art. 19 (2) it would not be saved and would be struck down as unconstitutional on the score of its violating the fundamental right of the petitioners under Art. 19 (1) (a).”
Reference
Express Newspapers (Private) vs The Union Of India And Others [1958]
[1] [1950] S.C.R- 594, 597.
[2] [1950] S.C.R. 605, 6o8
[3] (Blackstone’s Commentaries, Vol. IV, pp. 151, 152)
[4] (1935) 297 U.S. 233, 249; go L. Ed. 66o, 668.
[5] (1936) 30I U.S. 103. 136; 81 L. Ed. 953. 963
[6] (1939) 308 U-S- 147; 84 L. Ed. 155, 164
[7] 1944) 323 U-S- 516, 545; 89 L. Ed- 430, 448
[8] (1935) 297 U-S- 233, 249; 80 L. Ed. 660, 668.
[9] (1936) 301 U.S. 103,136; 81 L. Ed. 953, 963
[10] (1942) 319 U-S- 105, 136 ; 87 L. Ed. 1292, 1311
[11] (1945) 327 U. S. 186. 194; go L. Ed. 614, 621.
[12] (1945) 327 U. S. 178; 90 L. Ed. 607