A Critical Analysis of the freedom of speech and expression of the Media: Whether charging journalists under 499 of the Indian Penal Code 1860 violate Article 19 of the Constitution of India?
Author: Swastika Mukherjee,
School of Law, Christ deemed to be University
The Right to freedom of speech and expression as the “mother” of all liberties
The right of free speech and expression is the foundation of a democracy and the most essential factor for the working of the democratic process. The fundamental right to freedom of speech and expression guaranteed under Article 19 of the Constitution of India, as well as the right to obtain and disseminate information, which flows from the right to free speech and expression itself, is of paramount importance and is regarded as the first condition of liberty. It plays the most crucial role in the formation of public opinion on social, political and economic matters. It is a natural right and is inherent in the status of a citizen of a democratic country. A democracy functions on the basis of political discussions and open debates as that is the only corrective of government action in a democratic set-up.
The right to freedom of speech which corresponds to the right to a free press has come under the judicial microscope internationally several times ever since the movement for liberalization of the media began. It has been observed that Courts are struggling to arrive at the right balance between the freedom of expression of media houses about public affairs that is appropriate in a democracy and the protection of national security as well as the individual reputation of those involved in such affairs. It is for this purpose that the right of free speech and expression is limited by certain necessary reasonable restrictions to ensure that this freedom cannot be misused and abused to threaten public order and security of the country.
In Channing Arnold v. King Emperor, it was held that the media derives its rights from the right to freedom of speech and expression available to the citizens and thus the media has the same rights as that an individual to write, publish, circulate or broadcast. It is in fact the media that plays the paramount role in giving shape to this right by creating a platform for the citizens to express themselves and curtailment of such freedom on a ground that does not fall under reasonable restrictions as laid down is unjustifiable, unconstitutional and a threat to democracy.
Need and importance for restrictions on the freedom of speech and expression
However, the European Convention of Human Rights under Article 10 has declared that the exercise of these freedoms, since it carries with it duties and responsibilities, are subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the protection of health or morality, the reputation or rights of others and such other grounds. The rights being granted under Article 19(1) are therefore not absolute and are subject to reasonable restrictions as mentioned under Article 19(2) which empowers the State to impose certain limitations on the exercise of these powers. 
Despite the cardinal status given to this right, the Indian governments at both the national and state level often fail to share these values, passing laws and taking harsh actions to criminalize peaceful expression. The government uses draconian laws such as the sedition provisions of the penal code, the criminal defamation law, and laws dealing with hate speech to silence dissent resulting is widespread violence against journalists. These laws are vaguely worded, overly broad, and prone to misuse, and have been repeatedly used for political purposes against critics at the national and state level. While some prosecutions, in the end, have been dismissed or abandoned, many journalists who have engaged in nothing more than peaceful speech have been arrested, held in pre-trial detention, and subjected to expensive criminal trials. Fear of such actions, combined with uncertainty as to how the statutes will be applied, leads others to engage in self-censorship defeating the objective of Article 19.
This article will therefore discuss two contemporary issues of pressing social needs:
A. the tests that must be satisfied by a restriction to be a reasonable restriction falling under the bracket of Article 19(2)
B. defences to Section 499 of the Indian Penal Code in order to uphold the rights of media houses and journalists
The Tests that must be satisfied by a restriction imposed by the government in order to be legally enforceable:-
1.1.The test of reasonability
The reasonableness of a restriction must be adjudged on the consideration of factors such as: the duration and the extent of the restriction, the circumstances under which and the manner in which that imposition has been authorised.Further, the limitation so imposed must not be arbitrary or excessive, or beyond what is necessary in public interest.The intention behind imposing the restriction should be to strike a proper balance between the freedom guaranteed and maintenance of law and order so that the freedom is restricted only to the extent required to ensure social control. The restriction in order to be valid must also have a “direct nexus”or a rational connection with and should be in proportion to the threat posed by the absolute exercise of the right in its full capacity.
In New York Times Company v. Sullivan, the Court identified a fundamental conflict in the constitutional scheme: “The primary function of freedom of the press is to support the societal choice for a democratic form of government, but the very government that is established in this scheme will inevitably attempt to suppress speech that threatens its power..” therefore resulting in curb of dissent in a democracy.
1.2.The test of proportionality
The restriction imposed cannot be vague or for an undecided period of time such that it does not allow people to discuss the “burning topic of the day”; it is also irrational since the extent to which it seeks to curtail the exercise of the concerned right does not meet satisfy the test of proportionality. The test of proportionalitythat requires to be met by a restriction to be classified as a reasonable restriction states that a limitation on the exercise of a fundamental right shall be legitimate if the threat posed by such right is of a nature which required the imposed restriction. While restrictions can be imposed, there can be no blanket orders, as it would amount to a complete ban. The least restrictive option must be put in place, and the State should have taken preventive or protective measures.
The measure taken by the government shall be disproportionate if the state has not considered whether a less intrusive measure could have been adopted consistent with the object of the law and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to be achieved by such encroachment. The State needs to balance the safety of the people with their lawful exercise of their fundamental rights.
1.3.The test of freedom of press as the 4th pillar of a democracy
The Universal Declaration of Human Rights that has now attained the status of customary law provides that every person shall have the right to hold opinions and express the same through the media of his choice without any interference.The ICCPR to which India is signatory to provides the freedom of speech and expression as a civil liberty that extends to media and public broadcasting services. With regard to such liberty, not only does the Press has a duty but also a right to impart such information and ideas. Were it otherwise, the Press cannot perform its vital role as “public watchdog”.
A democratic political government which rests on the consent of the people and the contribution of their ideas to political questionscan only rest on the free debate and exchange of thoughts among the people.However, every liberty that is left unbridled has the tendency to become a license which would lead to disorder and anarchy.It is only a press free from executive control that can advance public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgements. It is true that newspapers having a bearing on public administration often contain such information which would not be palatable to the government, but the media must be protected from interference from such authority which would have the effect of interference with its content and circulation in the guise of public interest.
The defence to section 499 of the Indian Penal Code available to journalists
The frequent use of criminal defamation charges by the Tamil Nadu state government, led by Chief Minister Jayalalithaa, against journalists, media outlets, and rival politicians is illustrative of how the law can be used to criminalize critics of the government. The Tamil Nadu government reportedly filed nearly 200 cases of criminal defamation between 2011 and 2016. The Tamil-language magazines Ananda Vikatan and Junior Vikatan, both published by the Vikatan group, face charges in 34 criminal defamation cases, including for a series of articles assessing the performance of each cabinet minister. In May 2016, a two-justice bench of the Supreme Court, upheld the constitutionality of India’s criminal defamation law, saying: “A person’s right to freedom of speech has to be balanced with the other person’s right to reputation.” The court did not explain how it concluded that the law does not violate international human rights norms, which do not allow imprisonment for criminal defamation, or offer a clear or compelling rationale why civil remedies are insufficient for defamation in a democracy with a functioning legal system.
2.1. The defense of qualified privilege
Section 499-A of the IPC which deals with criminal defamation can be used as a tool. When the alleged defamatory statements are published by the media for the purpose of enabling political discussion, inclusive of discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office, as defined in Theophanous v Herald and Weekly Times Ltdwhich is a landmark case on this topic, the Court shall adopt a more liberal interpretation of the offence of defamation. The privilege is in conformity with the requirements of freedom of discussion, an essential part of the fundamental right of free speech and expression, on such matters being an indispensable incident of the system of representative government. Such privilege is available when the intention behind the alleged libel was not malicious but to enhance the “common welfare and convenience of society”. In Reynolds v. Times Newspapers Ltd , it was held that the defence of qualified privilege shall be applicable so long as the issue is related to a matter of serious public interest and had been published with reasonable care and fairness. The ten guiding principlescarved out in this case paved a way for liberalising the development of the media and acknowledged that earlier judges had been reluctant to extend privilege to include statements about politicians that were published “to all the world” but the international growth of liberal approach towards the press as the same is the most influential factor in moulding the political opinion of the country, required such privilege to be granted to journalists and media houses.
2.2. The defense of Fair Comment
The defense of fair comment on a matter of serious public interest, is of special relevance to the media as it provides complete defense to an action for defamation, in order to encourage the unhindered expression of political opinions and fair criticism. It is based on public policy and to endorse the right of all citizens to comment and criticize without mala fide intent on matters of legitimate public importance such as state affairs, administration of justice, public institutions and local authorities and other socio-cultural arenas of public interest. It was held that the test for availing this defense is that the words published must not be facts but comments based on facts whose truthfulness is underlined in the publication itself.
Thus, the concept of freedom of the Press therefore has a special dimension and embodies the democratic principle of accountability, and is an instrument of democratic control. A democratic government can survive without accountability; and the basic postulate of such accountability is that the citizens from whom the power is derived in a democracy must be allowed to perform the role of vigilant critics as informed public opinion is the most effective check on maladministration.
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 Supra note 3