By Anaida Kuthiala, Army Institute of Law, Mohali.

Since the very incarnation and inception and thereafter the enforcement of the Constitution of India, and in many of the Constitutions of the world, the free citizens have been given the right to freedom of speech, which, though not specifically mentioned in the Constitution of India, is itself inculcated in the very fabric of the freedom of speech and expression1 granted by the Grundnorm of our country, the Constitution of India under Article 19, Clause 1 . Even though it is an established Constitutional right, but the freedom of press is not an absolute and unqualified right. Clause (2) of Article 19 of the Constitution of India enables the legislature to impose certain restrictions on free speech. The freedom of speech and expression has been characterised as “the very life of civil liberty” in the Constituent Assembly Debates.2 Press, free press has always been vital for a democracy3, not only when they serve the bottom line, but especially when it doesn’t. The Supreme Court has described the freedom as the “ark of the covenant of democracy“. 4 The freedom of press showcases one of the facets of the rule of law, which should to be safeguarded in a democracy. The Apex Court held that one sided information, disinformation and miss-information, all equally create an uninformed citizenry, which makes democracy a farce.5

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As observed by the Honourable Supreme Court of India, in Romesh Thappar V. State of Madras,6 in the early years of our independence, that the freedom of speech and of the press are at the foundation of all democratic organizations, for without free political discussion there is no public education. The freedom of the press serves the larger purpose of the right of the people to be informed of a broad spectrum of facts, views and opinions. The far-sighted and definite search and enlightenment of an array of concerns are displayed to and communicated through the medium of press. The world knows about the world and the major concerns surrounding the life of a daily wager or a plumber, or/and extending to the lives of a person occupying one of the most crucial positions in the polity of the country and other Govt. Officials. Thus, “[t]he survival and flowering of the Indian democracy owes a great deal to the freedom and vigour of our press.”7

The media is vital in the role it plays in uncovering the truth and rousing public opinion, especially in the face of wrongdoing and corruption. We are constantly being kept well informed by the devoted and staunch persons doing their part of the job. But where does one draw the line. Where does one differentiate between what is called as keeping people well informed and what is intruding into the privacy of one’s life. It is one thing to curtail racist and hateful remarks, and it’s quite another to censor political content. Well, we cannot determine the excess over that vague line of difference but the extent of the overlap is sanctioned so as to prevent protection to one right over the violation of the other.

One finds himself to be well informed of the national and global scenarios when he/she is able to successfully participate in a legitimate public debate on a thing of time value and importance to the society. A Journalist puts himself in danger because of the recurring after effects of the dangers of criminal defamation, which turn ‘critics into criminals’ as criminal defamation chills public speech and debate, due to fear from arrest and criminal prosecution. Threats to legal action with punitive damages under the laws of defamation lead to a “chilling effect” on the publication of free and independent news articles and puts undue pressure on the journalists and publishing houses.

India was ranked 136 out of 180 nations worldwide in terms of press freedom in 2015, which marks an improvement from its rank of 140 in 2014.8 The Central Govt. has reportedly sought a report from the Law Commission as to whether defamation should be decriminalised before responding to the Supreme Court which asked it to file response in four weeks in a petition (SLP) filed by Subramaniam Swamy9 recently. The Law Commission held a consultation on the subject and published a report thereof dated 1/5/2014. The Law Panel reportedly said that criminal defamation laws violate international norms freedom of speech . The UN Human Rights Committee stated that defamation laws should be crafted with care to ensure that they do not serve, in practice, to stifle the freedom of expression. The issue of defamation vis-a-vis the news media requires careful consideration. On one hand, instances of fake sting operations or trial by media give credence to allegations of irresponsible journalism. On the other hand, threats of legal action with punitive damages under the laws of defamation lead to a chilling effect on the publication of free speech and independent news articles and pressurises the journalists and publishing houses. Thus, any change in the defamation laws in India must be brought about after due consideration of the full facts and the aftermath, so as to balance out the consequences of the same.

Media laws affect and are affected by the masses and are therefore an essential ingredient for a balanced democracy. In order to establish a balance between the required transparency and maintenance of a particular level of protection of one’s privacy, the media laws should to be drafted and enforced after application of the mind, taking due considerations of the present, past and the posterity.

1 BrijBhushan and Another v. The State of Delhi , AIR 1950 SC 129; Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305.

2 Constituent Assembly Debates: Official Report, (Delhi 1946-1950), VII, p. 18.

3 Indian Express v. Union of India (1985) 1 SCC 641

4 Bennet Coleman & Co. v. Union of India, AIR 1973 SC 106

5 Union of India v. Assn. for Democratic Reforms(2002) 5 SCC 294

6 AIR 1950 SC 124

7 Amartya Sen, “The glory and the blemishes of the Indian news media”, The Hindu, April 25,2012.

8India improves press freedom rank“, February 13, 2015, the Hindu. See : http://www.thehindu.com/news/national/india-improves-press-freedom-rank/article6889937.ece

9 Subramaniam Swamy v. Union of India, Writ petition(Crl.) No. 184 of 2014. See: http://supremecourtofindia.nic.in/outtoday/wr18414p-2014_10_30.pdf

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