Press Freedom: Problems, Perils & Paradoxes

Soli J Sorabjee

In my talk this evening I would like to address the problems, paradoxes and perils concerning the Freedom of the Press. I shall do so frankly and bluntly attempting to follow the example of our dear Prem Bhatia, whose life and career symbolised true commitment to Freedom of the Press and to democratic values. Courage was Prem’s foremost virtue. When one surveys the present scene and the fall in values one cannot help exclaiming: Prem you shouldst have been living at this hour. The nation hath need of you.

One of the paradoxes is that Freedom of the Press to which our Founding Fathers were greatly attached finds no mention in Part III of our Constitution which guarantees certain fundamental rights. There is no specific guarantee of Freedom of the Press as in the Constitutions of other countries.

In the course of the Constituent Assembly debates, Dr. Ambedkar expressed the same view, and thought that “no special mention is necessary of the Freedom of the Press at all”. This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Press is implicit in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution. Thus Freedom of the Press by judicial interpretation has been accorded the constitutional status of a fundamental right. However there is a strong body of opinion which favours specific mention of Freedom of the Press as a fundamental right.

The fundamental right guaranteed is not merely the individual right of the proprietor of the newspaper, or the editor or the journalist. It includes within its capacious content the collective right of the community, the right of citizens to read and to be informed, to impart and receive information. In substance, it is right of the people to know.

When we are speaking about the Freedom of the Press it must be remembered that freedom of expression and Freedom of the Press are not absolute and unlimited. Under our constitutional scheme Freedom of the Press also can be restricted provided three distinct and independent prerequisites are satisfied. The restriction imposed must have the authority of law to support it. The law must fall squarely within one or more heads of restrictions specified in Article 19(2), namely, (a) security of the State, (b) sovereignty and integrity of India, (c) friendly relations with foreign States, (d) public order, (e) decency or morality, (f) contempt of court, (g) defamation or (h) incitement to an offence. The restriction must be reasonable.
One of the permissible heads of restrictions is defamation. In our country there can be criminal prosecution for defamation with imprisonment up to two years and fine. There is also the civil remedy for damages for defamation. The possibility of criminal prosecution and imposition of heavy damages in civil suits against the press can have a chilling effect which can at times be freezing. Thus the potentiality of clash between Freedom of the Press and laws or measures protecting reputation which is the purpose of the law of defamation is inevitable. This is a real problem. How is this problem of a defensible accommodation of the reputational and expressive interests to be solved?.

Our Supreme Court in its path-breaking judgment in R. Rajagopal v. State of TN has ruled that no action for libel lies “even where the publication is based upon facts and statements which are not true, unless the public official establishes that the publication was made with reckless disregard for truth. In such a case, it would be enough for a member of the press or the media to prove that he acted after a reasonable verification of the facts; it is not necessary to prove that what has been written is true”. Now comes the important judicial caveat. “Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages.” This is the peril which the Press has to face.

The constitutional guarantee of free speech and Freedom of the Press does not confer a fundamental right to defame persons and harm their reputations by false and baseless allegations and by innuendoes and insinuations. The Press enjoys no talismanic immunity from legal proceedings when it has indulged in malicious falsehoods. A person’s right to good name and honor is also a basic human right.

Let me turn to the issue of privacy. Right to privacy is not specifically guaranteed by the Constitution but it has been judicially deduced by our Supreme Court in Rajagopal’s case. The same problems which arise in the case of defamation confront the Press in the realm of privacy. There is an essential distinction between defamation and breach of privacy. The gist of defamation is that the statements are false. The gist of the complaint in breach of privacy is not that the facts mentioned are untrue. They are correct but their publication invades a person’s right to privacy, the right to be left alone, the most comprehensive of rights and the right most valued in civilized societies. Privacy is not an isolated freedom, nor is it simply one freedom among many. Creativity and originality draw their sustenance from privacy.

In this context, I would like to emphasize that while distinct interests are protected by the law relating respectively to defamation and privacy, each of these bodies of law can be regarded as affording protection to human dignity. Consequently, the right to freedom of expression and Freedom of the Press stand in an uneasy relationship with interests in reputation and privacy. There is no denying that both freedom of expression and reputation and privacy are invaluable in a democratic society. Hence, those who have the task of accommodating them within the law must make agonizing and controversial choices between incommensurables.

Another peril which daily confronts the Press arises from the present law of contempt. Any person, including the press, is free to criticize a judgment, to comment on it pungently, severely, because justice is not a cloistered virtue and can suffer the outbursts of even the wrong headed.

Today under the law of contempt as it stands and has been interpreted in India, truth is no defence to an action for contempt. It is highly arguable that the rejection at the threshold of the plea of truth for proving the allegations operates as an unreasonable restriction on the freedom of expression and Freedom of the Press. It prevents exposure of misdeeds and corruption in the judiciary which regrettably is prevalent in some courts. Consequently many journalists and media persons succumb to self censorship and are deterred from exposing the misconduct of some errant judges, the few rotten eggs who tarnish the image of the judiciary and which is most unfair to the overwhelming majority of honest and conscientious judges.

Of late, there is an unfortunate tendency to accuse judges of dishonesty and suspect their motives if the verdict has gone against the party. This trend must be curbed.

The Constitution has prescribed the method for the removal of a Supreme Court or High Court judge for misconduct. But as long as the constitutional provisions are what they are, it is not open to a group of persons, however eminent and well-intentioned, to resort to procedures for inquiring into a judge’s conduct which have no sanction of the law or the Constitution.

The judiciary has provided generous protection to the Freedom of the Press. It is an abiding responsibility of the Press to ensure that the image and authority of the institution is not damaged by unsubstantiated and baseless attacks on the judiciary and those who man it.

The Press is a mighty institution and has a vital role to perform. In our multi cultural pluralistic society the media should reflect and give expression to divergent and antagonistic views and opinions. It is the responsibility of the press to inform people about the real issues confronting the country.

One of the real perils facing the press arises from the fact that it is not an uncommon feature in capitalist societies that the ownership patterns lead newspapers to reflect and support the interests of its proprietors who are also engaged in other commercial and industrial activities, and also to protect the interests of its advertisers. This is the real moral problem that confronts the newspaper, particularly the editor.

Joseph Pulitzer has rightly pointed out that “commercialism has a legitimate place in a newspaper, namely, in the business office … But commercialism, which is proper in the business office, becomes a degradation and a danger when it invades the editorial rooms. Once let the publisher come to regard the press as exclusively a commercial business and there is an end of its moral power.” According to him “without high ethical ideals a newspaper not only is stripped of its splendid possibilities for public service, but may become a positive danger to the community.”

The point I am attempting to drive home is that a newspaper which systematically and intentionally suppresses or manipulates information, restricts the content of information and denies its accessibility to the public who are its readers betrays its true role and forfeits its trust as the trustee of a vital public resource. It has ceased to be its watchdog and sentinel and it no longer guards the Ark of the Covenant of democracy.

To my mind it is the abiding legal and moral obligation of the press to abjure from incitement to caste or communal violence or to spread of hatred and prejudice against particular communities or classes or in any manner because the instrument for dissemination of hate speech. In acting otherwise the press subverts, not subserves, democracy. What is required is a sustained effort to sensitize people to the value of free speech and the importance of dissent. Absence of dissenting views, absence of non-conformity would be symptomatic of serious moral and intellectual malaise in a society. Freedom of expression and Freedom of the Press will rest on solid foundations in a society which is characterized by a temperament of tolerance, by a tolerance of dissent and acceptance of the dissenter as an equal member of the society.
We rightly prize press freedom and should be vigilant in repelling encroachments, direct or indirect, on the exercise of this precious freedom. Freedom of the press is undoubtedly one of the basic freedoms in a democratic society based on the Rule of Law. Nonetheless Freedom of the Press is not an end in itself. It is the means for ensuring that in a democratic society there is good governance, transparency in administration, enforcement of accountability of the wielders of power and that human dignity and other human rights are respected. Whilst we must vigorously defend this freedom against onslaughts from fanatics one should not be fanatical about it and forget that the public function which belongs to the press makes it an obligation of honor to exercise this function with the fullest sense of responsibility.

The Press in India save and except some aberrations and exceptions has discharged its societal role commendably. On the whole it has been a good watchdog. It has played an important and constructive role in India by exposing deception and secrecy in the working of the administration and public institutions. Several scams have been brought to light by a vigilant press. It has been instrumental in promoting the human rights of the lowly and the lost.

I have no doubt that in the coming years the Press will continue to play its role with courage, with objectivity, with fairness and with vision remembering that the ultimate goal is of ensuring good governance and the good life for we, the people of India.