Freedom of Speech, and the Freedom of the Press Inside It
Chapter Fifty-Nine
Syllabus topic 5, "Freedom of press and challenges of new scientific development".
Pages 267 to 270 of 304
In one line
The Constitution never mentions the press, and everything the press has comes from the ordinary citizen's right to speak.
In the wording a student can write in an exam: article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression, and article 19(2) permits the State to make any law imposing reasonable restrictions on the exercise of that right in the interests 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. The expression "freedom of the press" is not used in article 19, but as the Supreme Court declared in Indian Express Newspapers (Bombay) Pvt Ltd v. Union of India it is included in article 19(1)(a), and freedom of the press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers.
Why the omission matters
The Constituent Assembly considered a separate guarantee for the press and did not enact one. Dr Ambedkar's reason was that the press has no special right that a citizen does not have: an editor or a manager is exercising the same freedom of expression as anybody else, and to give the press a distinct right would be to create a privileged class of speaker.
Four consequences follow, and stating them is how an answer shows it understands the structure rather than reciting cases.
The press has no greater right than a citizen. A journalist may go where a citizen may go and publish what a citizen may publish. There is no constitutional privilege to enter, to obtain information, or to withhold a source, though statutes and practice supply some of these.
The press has no lesser right either. The State cannot regulate newspapers as a trade and then say that speech is unaffected, which is the argument Bennett Coleman rejected.
The right belongs to citizens. Article 19 is conferred on citizens, so a foreign national or a foreign company cannot claim it. That produced the standing problem in Bennett Coleman.
The grounds of restriction are the citizen's grounds. Article 19(2) applies unchanged, so nothing may be done to a newspaper that could not be done to a speaker.
What the freedom includes
Built up case by case, and the list is the answer to "what does freedom of the press mean".
The right to publish. To print and to disseminate ideas.
The right to circulate. This is the one students forget, and it is the most important.
Facts. Sakal Papers (P) Ltd v. Union of India, AIR 1962 SC 305, (1962) 3 SCR 842, decided 25 September 1961. The Newspaper (Price and Page) Act 1956 and an Order under it fixed the number of pages and the size a newspaper might publish in relation to its price, and regulated the space for advertisements. The stated object was to prevent unfair competition and to help smaller newspapers.
Freedom of Speech, and the Freedom of the Press Inside It
Held. The Act and Order were void as violating article 19(1)(a) and not saved by article 19(2). The freedom of speech and expression includes the freedom of the press. For propagating his ideas a citizen has the right to publish, to disseminate and to circulate them, and the right extends not merely to the matter he is entitled to circulate but also to the volume of circulation. The Act restrained that aspect and was directed against circulation. Article 19(2) does not permit the State to abridge the right in the interests of the general public: the grounds in clause (2) are exhaustive, and helping smaller newspapers is not among them.
Why it matters. Two propositions of the first importance. Circulation is part of the right, so a measure that reduces readership restricts speech even if it censors nothing. And a benevolent object is irrelevant unless it falls within article 19(2).
The right not to be taxed into silence.
Facts. Indian Express Newspapers (Bombay) Pvt Ltd v. Union of India, AIR 1986 SC 515, (1985) 2 SCR 287, decided 6 December 1984. Customs duty was imposed on imported newsprint, and newspapers said a tax which raises the cost of production and reduces circulation restricts article 19(1)(a).
Held. The expression "freedom of press" is not used in article 19 but is included in article 19(1)(a). Freedom of the press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There can be no restriction other than those in article 19(2), and no interference in the name of public interest: even when clause (2) was substituted by the First Amendment in 1951, Parliament did not add the general interest of the public.
Why it matters. It confirms that the grounds are exhaustive, and it establishes that a tax is not automatically outside article 19: the question is whether its effect is on content or circulation. The press is not immune from general taxation, but a tax aimed at, or operating on, circulation is a restriction.
The right of a company's shareholders to speak through it.
Facts. Bennett Coleman & Co v. Union of India, AIR 1973 SC 106, (1972) 2 SCC 788, decided 30 October 1972. The newsprint policy limited the pages a newspaper might publish, prevented a common ownership unit from starting a new paper, and restricted interchange of quota. The Union said this was rationing of a scarce commodity, touching trade rather than speech, and that a company cannot claim article 19(1)(a).
Freedom of Speech, and the Freedom of the Press Inside It
Held. By the majority, the fundamental rights of shareholders as citizens are not lost when they associate to form a company; where their rights as shareholders are impaired by State action they are protected, because the shareholders' rights are necessarily affected if the company's are. The individual rights of editors, directors and shareholders are expressed through their newspapers, so the shareholders' locus standi is beyond challenge and the presence of the company is no bar to relief. On the merits the policy fell: a limit on pages operates directly on circulation and content and cannot be defended as mere rationing.
Why it matters. It solves the standing problem created by article 19 being a citizens' right, and it establishes the effect test: what matters is what a measure does to speech, not how it is labelled.
What the freedom does not include
An honest answer says this too.
No right of access to government information as such, before the Right to Information Act. The right to information was read into article 19(1)(a) later and by a different route, dealt with in [The Right to Information].
No privilege against disclosure of sources as a constitutional matter; what exists is statutory and partial.
No right to be free of general laws. The press is subject to the law of defamation, contempt, obscenity and the criminal law like everybody else, because it has the citizen's right and no more.
No right to a licence, a quota or a subsidy. But once the State chooses to allocate such things, the allocation is subject to article 14 and cannot be used to punish or reward content.
A worked example
A State grants advertising contracts to newspapers out of public funds, and announces that papers which publish material "prejudicial to the State's development narrative" will be removed from the empanelled list. A newspaper so removed challenges the decision.
Is there a right to government advertising? No. There is no constitutional right to a subsidy, a licence or a contract.
Does that dispose of the case? No, and this is the point. Once the State chooses to allocate a benefit, the allocation is State action subject to article 14 and cannot be exercised arbitrarily, on the R.D. Shetty principle in [Arbitrariness]. More importantly, a benefit withdrawn because of the content of what was published is a restriction on speech in effect, whatever its form. That is Bennett Coleman's effect test: the label is trade, the operation is on content.
Is it saved by article 19(2)? The ground would have to be one of the enumerated eight. "Prejudicial to the State's development narrative" is none of them. On Sakal Papers and Indian Express, the State cannot abridge the right in the interests of the general public, and it certainly cannot do so in the interests of its own reputation.
Freedom of Speech, and the Freedom of the Press Inside It
What of circulation? Withdrawal of advertising revenue reduces the paper's capacity to print and circulate. On Sakal Papers the volume of circulation is part of the right.
Answer. The withdrawal is bad. Not because the paper had a right to the advertising, but because the State used a discretionary benefit as a lever on content, which is a restriction that must be justified under article 19(2) and cannot be.
Quick revision
- The Constitution does not mention the press; the freedom is inside article 19(1)(a), and the press has neither more nor less than a citizen.
- The right is a citizens' right, which produced the standing problem in Bennett Coleman.
- Sakal Papers: the right extends to the VOLUME OF CIRCULATION, and article 19(2) does not permit abridgement in the interests of the general public.
- Indian Express: freedom of the press is freedom from interference with CONTENT AND CIRCULATION; the grounds in article 19(2) are exhaustive; a tax may be tested by its effect.
- Bennett Coleman: shareholders do not lose their rights by incorporating; and the EFFECT TEST, a measure operating on speech is a restriction whatever it is called.
- Not included: a right of access to information as such, a source privilege, immunity from general laws, or a right to a licence or subsidy. But allocation of a benefit is subject to article 14 and cannot be used against content.
Test yourself
1. Why is there no separate guarantee for the press, and what four consequences follow?
2. State the two propositions from Sakal Papers, and explain why the second defeats a benevolent object.
3. How did Bennett Coleman solve the problem that article 19 is a citizens' right?
4. What is the effect test, and how does it apply to a tax?
5. Name four things the freedom of the press does NOT include, and state the qualification on the fourth.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.