At all levels of society in a nation, be it national, regional or local, the press can be said to be the watchdog of the public at large – one cannot deny the role the press plays as an educator, entertainer and even a storyteller or chronicler, and thus, the press functions as an essential and crucial pillar of any democracy. Thus, our nation's gradual decline in its World Press Freedom Index, published by 'Reporters Without Borders' is quite alarming. From the rank of 138 out of 180 nations in 2018, India has seen a drop to the 142nd position in 2021 to an almost dystopian 150th in 2022. While these findings have been disputed by the Indian Parliament, they still constitute solid reason for the actual status of the freedom of press to be looked into.

While the concept of 'freedom of the press' has not been expressly stated in our constitution, it is considered to be an essential part of Article 19(1)(a) that grants the freedom of speech and expression. The decision not to specifically mention freedom of the press in the constitution was a conscious one, as it was opined by Dr. Ambedkar (chairman of the Drafting Committee of the Constituent Assembly) that the press was on the same footing as an individual or citizen as far as freedom of expression is concerned. Further, this view has been upheld by the Supreme Court time and again through various pronouncements, as discussed hereinbelow.

However, it is interesting to note that while the freedom of the press has been expressly recognised and has been reaffirmed by courts from time to time; the very same courts have also seen fit in several cases to pass orders that essentially 'gag' the press, hence being called gag-orders, especially in cases that involve litigants that stand out in the public eye.

In view of the above, let us examine where we as a nation really stand on press freedom.

Judicial Precedents – What does Freedom of the Press mean?

In the case of Romesh Thapar vs. State of Madras1, the Supreme Court, while taking it for granted that the freedom of the press forms an essential part of the right to freedom and expression as granted in Article 19 of our Constitution, has observed that – "Freedom of speech & of the press lay at the foundation of all democratic organization, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible." Thus, it can be surmised that the freedom of speech and expression also covers the right to publication and circulation, through all means.

Further, in Union of India vs. Association for Democratic Reforms2 and Express Newspapers vs. Union of India3, the role that the freedom of press plays in our democratic machinery has been expressly recognised, and the essential elements of the freedom of press have been defined, as follows – (i) free access to all sources of information, (ii) free publication, and (iii) free circulation.

Interestingly, even in cases where the legislature has sought to place restriction on or tried to supress the freedom of the press, it has been safeguarded by our judiciary. For instance, in Sakal Papers vs. Union of India4, the number of pages and size of a newspaper that could be published by a media house at a certain price was fixed by the 'Daily Newspapers (Price and Page) Order, 1960. The same was held to be an unreasonable restriction, and thus, violative of the freedom of the press. A similar view was taken in Bennet Coleman and Co. vs. Union of India5, wherein the 'Newsprint Control Order' was struck down as being unconstitutional, as it sought to fix the maximum number of pages of a newspaper that could be published.

Thus, it is evident that the freedom granted to the press protects not only the freedom for the media / press with relation to what content they wish to publish, but also the means they employ to communicate such content to the public. However, it is pertinent to note that this freedom is not absolute, and is limited by the concerns listed in Article 19 (2), which are – (i) Sovereignty and integrity of the State, (ii) Security of the State, (iii) Friendly relations with foreign countries, (iv) Public order, (v) Decency and morality, (vi) Contempt of court, (vii) Defamation, and (viii) Incitement to an offence.

Gag Orders – What is the cost of Freedom?

As the name suggests, gag orders are orders that are issued by courts or by government bodies that restrict certain information or certain comments / opinions against a person/s or entity/ies from entering the public gaze. In short, many civil libertarians and journalists see gag orders as a threat to the freedom of the press, while several courts see them as inherently necessary to maintain the integrity of the judicial process. Over the years, several gag orders have been passed by courts; let us examine a few of these.

In the March of 2019, an interim injunction was passed against over 40 media houses and several social media platforms by the Ld. Bangalore City Civil Court prohibiting them from publishing 'defamatory statements against Mr. Tejasvi Surya (BJP Candidate and lawyer). This order was passed when Mr. Surya lodged a defamation suit in response to several publications of stories that reported alleged cases of abuse against him. Interestingly, this order was later overturned by the Hon'ble Karnataka High Court, while observing that citizens have a right to access information about contesting candidate it held that Mr. Surya was at liberty to approach the Election Commission in the event he was aggrieved by any alleged defamatory news item.

Another example is of the 2018 Muzaffarpur Shelter Home case, wherein the Hon'ble Patna High Court restrained media houses from reporting any information on the case on the pretext that such publications would interfere with or hamper the investigation. This order too was set aside, by the Hon'ble Supreme Court, while restraining the media from carrying images of or interviews from victims to safeguard them and appealing to the media to report responsibly.

The abovementioned Muzaffarpur cases also highlights a key issue with gag orders – they are often in the form of blanket orders which serve to stall any and all publication regarding a particular subject. In terms of judicial precedent, it has been held by the Hon'ble Supreme Court in Sahara v. SEBI that courts can grant preventive reliefs in such cases, however such restraint on publication must (i) be temporary, and (ii) be granted only in cases where there exists a real and substantial risk of prejudice. Thus, in law, a blanket gag order restraining any and all publication that does not even relate to the subject matter of dispute and that too for an indefinite period of time is untenable and cannot be granted. This is of utmost import, as blanket orders in the form of gag orders have serious consequences to both the right of citizens to know or to receive information, and on the freedom of the press.

National Security and Freedom of the Press

Another reason that is often cited when restricting the freedom of the press, is on of national security concerns. A recent case which brought this to the forefront has been the case of the ban imposed on 'MediaOne' a popular Kerala news channel owned by Madhyamam Broadcasting Limited. Back in 2022, its license was revoked by the Union Government over alleged security concerns as many of the investors that own Madhyamam Broadcasting Limited are allegedly members of Jamaat-e-Islami Hind's Kerala Chapter.

It is interesting to note that the Hon'ble Supreme Court in the Pegasus case has clearly and unequivocally laid down that national security must not be a "bugbear that the judiciary shies away from." In apparent disregard of the same, this ban was upheld by the Hon'ble High Court of Kerala, accepting the denial of security clearance that was argued by the Union Home Ministry.

However, in a much-needed win for the freedom of the press, the Supreme Court on 05.04.2023 quashed the Union government's ban while being heavily critical of the Kerala High Court's judgment upholding the ban and the government's tactic of invoking 'national security' to enforce it.

Is the lifting of bans enough?

Since 2017, our nation has seen well over 140 cases of assault against journalists, with over a dozen killings in Uttar Pradesh alone. Quite worryingly, India ranks among the top 4 countries in terms of the greatest number of deaths recorded of journalists that have been targeted and attacked due to their work.

One of the most notable cases has been the 2017 shooting of Gauri Lankesh, the editor of Gauri Lankesh Patrike – a Kannada tabloid, who was targeted for her vehement opposition of Hindutva in her writings and speeches. A more recent incident was the shooting of Subhash Kumar Mahto in 2022. It was speculated that his shooting could have been motivated by his dogged reporting on sand and liquor mafias.

Thus, while our nation seemingly has the legal machinery to protect the freedom of the press, the question we must ask ourselves is – is it enough? Is the media really free, even if their right to freedom of speech and expression is constitutionally protected?

Conclusion and Analysis

As we have seen, the freedom of the press is essential to democracy, that while not being specifically mentioned in our constitution, is certainly an integral part of Article 19 – the freedom of speech and expression. While it is heartening to see the Hon'ble Supreme Court uphold the same, the MediOne case brings to the forefront a worrying trend – it is often that blanket bans or orders are imposed against media houses at large by lower courts which are then subsequently lifted by higher forums as an when they are appealed. This brings to notice a sort of incongruity in the understanding of freedom of the press in our judiciary and can sometimes play a role in the propagation of 'the chilling effect', i.e., refraining from expressing one's opinions freely due to a fear of ending up on the wrong side of law. Further, as discussed hereinabove the issue of safety of journalists is also a major concern in our country which must necessarily be looked into if we are to truly protect the freedom of the press.

Courts should be subjected to strict standards before gagging trial participants. Courts frequently use gag orders without looking at viable alternatives and the orders are too broad and should be limited to specific information; in addition, they should not hinder the news-gathering abilities of the press and restrict the flow of information to the public.

While one understands the fears over misreporting, impact on fair trials and even national security concerns, the answer cannot be to stifle the voice of the media. There are ways and means, such as contempt laws, the making available of courtroom feeds to the public and even defamation avenues available in cases of transgressions by the media. However, utmost care needs to be taken that the freedom of the press is protected and only restricted in cases where there exists sufficient reason and constitutional sanction, and not because criticism makes powerful people uncomfortable.

Footnotes

1. 1950 SCC 436

2. AIR 2001 Delhi 126

3. (1985) 2 SCR 287

4. (1962) 3 SCR 842

5. [1973] 2 SCR 757

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.