Freedom of the press

Topic: Fundamental Rights and Constitutional Remedies · NCERT: Beyond NCERT

Meaning

Freedom of the press is the freedom of newspapers and other media to print, publish and circulate news and views without control by the government. The Constitution does not name it. The courts have read it into freedom of speech and expression under Article 19(1)(a).

It matters because a free press keeps citizens informed and holds the government to account. Like all free speech, it can be limited only on the grounds listed in Article 19(2).

Explanation

How it became a right

• Article 19(1)(a) lets citizens share their views through speech, writing, print, pictures, film or any other medium.
• The press uses the same right. It has no separate article of its own.
• The Supreme Court built the right step by step through these cases:
• Romesh Thappar v. State of Madras (1950): the freedom to circulate a publication is part of free speech.
• Sakal Papers v. Union of India (1962): the freedom to decide how much to print is part of free speech.
• Bennett Coleman v. Union of India (1973): courts must look at how a rule actually affects the press.

What it covers

• Publication. The State cannot order a paper to show its material to the government before printing. This is called pre-censorship. In Brij Bhushan v. State of Delhi (1950), the Court struck down such an order against the weekly Organiser.
• Circulation. A ban on a journal entering or circulating in a state cuts free speech. In Romesh Thappar, the ban on Cross Roads was struck down.
• Size and volume. A rule that fixes how many pages a paper may print at a given price cuts its speech (Sakal Papers, 1962).
• Newsprint. Limits on newsprint (the paper that newspapers are printed on) were struck down in Bennett Coleman (1973).

• The Court used an effect test. It asked how much the rule actually hurts speech, not only what the rule says it is about.

• No curbs to serve other goals. The State cannot limit the press to reach some other aim, such as helping smaller papers (Sakal Papers).

Limits: Article 19(2)

• Reasonable restrictions are limits the State may place on a right, but only on the grounds listed in the Constitution. Courts check whether each limit is fair, needed and in proportion to the harm.
• Under Article 19(2), the State may make laws restricting free speech "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" [4].

• The eight grounds: 1. Sovereignty and integrity of India 2. Security of the State 3. Friendly relations with foreign states 4. Public order 5. Decency or morality 6. Contempt of court 7. Defamation 8. Incitement to an offence

• The list is complete. In Kaushal Kishor v. State of U.P. (2023), a Constitution Bench held that courts cannot add new grounds by relying on some other right, such as Article 21.

• Only citizens. Article 19 rights belong only to citizens. Foreigners cannot claim them.

In the Constitution and practice

Where it sits

• Article 19(1)(a) contains the right, and Article 19(2) sets its limits. Both are in Part III (Fundamental Rights).
• It is part of the Right to Freedom, the group of Articles 19 to 22.

How press cases changed the Constitution: the 1st Amendment, 1951

• The problem: in 1950, the original Article 19(2) allowed limits only for things that undermined the security of the State or tended to overthrow it.
• In Romesh Thappar, the Court struck down the Cross Roads ban because "public safety" was not a ground in Article 19(2).

• It struck down the pre-censorship order in Brij Bhushan for the same reason.

• The government's answer was the 1st Amendment, 1951:

• It added public order, friendly relations with foreign States and incitement to an offence as grounds [3].
• It added the word "reasonable" before "restrictions", so courts can test every limit.

• It let the new clause apply to earlier laws as well [3].

• The 16th Amendment, 1963 added "sovereignty and integrity of India". It came after the 1962 war with China and during demands for secession.

Laws that affect the press today

• Sedition:
• Kedar Nath Singh v. State of Bihar (1962) upheld IPC s.124A but read it down. To "read down" a law means the court narrows its meaning so that it stays constitutional. Only words that incite violence or public disorder count as sedition.
• S.G. Vombatkere v. Union of India (May 2022) put s.124A on hold.

• The Bharatiya Nyaya Sanhita (BNS), 2023 dropped sedition as an offence [2]. It added s.152, which covers acts done through words, signs, visible representation, electronic communication or financial means [1]. Critics call it "sedition by another name".

• Criminal defamation: this means harming someone's reputation is treated as a crime, not only a civil wrong. It is now BNS s.356.

• Subramanian Swamy v. Union of India (2016) upheld it, because reputation is part of Article 21.

• Critics say journalists face long, costly trials. This creates a chilling effect, meaning people stay quiet out of fear.

• Contempt of court: this is still a 19(2) ground under the Contempt of Courts Act, 1971. Articles 129 and 215 let the Supreme Court and the High Courts punish contempt.

Digital media

• Shreya Singhal v. Union of India (2015) struck down s.66A of the IT Act, 2000 for three reasons:
• It was vague.
• It was overbroad.

• It was not linked to any 19(2) ground.

• In the same case, s.69A (the government's power to block online content) was upheld, and s.79 (safe harbour for platforms) was read down.

• Fact-check unit:
• The IT Rules, 2021 were amended on 6 April 2023. Platforms had to remove content that a Central government fact-check unit marked as false about government business. Otherwise they would lose their legal protection [5].
• In March 2024, MeitY notified the PIB Fact Check Unit as this unit [6].

• The Bombay High Court (Kunal Kamra case, 2024) struck the rule down as vague and as going beyond the 19(2) grounds (verify current).

• Takedowns: the government amended Rule 3(1)(d) of the IT Rules, 2021 to add transparency, accountability and safeguards to takedown notices [7].

• Digital news and streaming: these are covered by the Code of Ethics in the IT Rules, 2021.

Don't confuse with

• Freedom of speech and expression (Art. 19(1)(a)): freedom of the press is not a separate right. It is one part of this right. It has the same eight 19(2) limits and no extra grounds of its own.
• Right to know (State of U.P. v. Raj Narain, 1975): this is the people's right to receive information about public acts of the government. It later supported the RTI Act, 2005. Freedom of the press is the right to publish and circulate.
• Pre-censorship vs reasonable restriction: pre-censorship means checking material before it is printed, as struck down in Brij Bhushan (1950). A reasonable restriction is a law based on one of the eight 19(2) grounds, which courts can test for fairness.
• Criminal defamation vs civil defamation: criminal defamation means jail or a fine (BNS s.356, upheld in Subramanian Swamy, 2016). Civil defamation means only paying damages to the person harmed.

Prelims Hooks

• Freedom of the press is not written in Article 19. It is implied in Art. 19(1)(a): Romesh Thappar (1950), Sakal Papers (1962), Bennett Coleman (1973).
• Case–principle pairs: Romesh Thappar protects circulation. Sakal Papers struck down page limits. Bennett Coleman struck down newsprint limits using the effect test. Brij Bhushan struck down pre-censorship.
• 1st Amendment, 1951 added public order, friendly relations with foreign States and incitement to an offence, plus the word "reasonable". 16th Amendment, 1963 added sovereignty and integrity of India.
• Trap: "security of the State" was in the original Article 19(2). It was not added in 1951.
• Article 19(2) has 8 grounds, and the list is complete (Kaushal Kishor, 2023).
• Shreya Singhal (2015): s.66A was struck down, s.69A was upheld and s.79 was read down. Trap: the blocking power was not struck down.

Mains Points

• Liberty versus order: the 1st Amendment came only 18 months after the Constitution started. It was a direct response to press cases (Romesh Thappar and Brij Bhushan), and it shows the early State's fear of disorder.
• The word "reasonable" and judicial review are the balance.

• Shreya Singhal's line between discussion, advocacy and incitement is the best test of whether a curb on the press is in proportion to the harm.

• Chilling effect on journalists: criminal defamation, the broad wording of BNS s.152, and s.66A cases filed after it was struck down all discourage reporting. When the trial itself is the punishment, the press stays quiet.

• Reforms: make defamation a civil wrong only, write the Kedar Nath incitement-to-violence test into s.152, require police to get approval before filing a case, and train the police.

• Should the government decide what is true? The State fact-check unit, s.69A blocking orders that are not made public, and takedowns by platforms all raise this question for digital news.

• Better options: independent oversight, publishing blocking orders, giving users notice and a right to appeal, and keeping all rules within the eight Article 19(2) grounds.

Related concepts

• Right to freedom
• Freedom of speech and expression
• Reasonable restrictions
• Restrictions on freedom of speech
• Romesh Thappar case
• Kedar Nath Singh case
• Sedition
• Criminal defamation
• Shreya Singhal case
• Bijoe Emmanuel case

Read more

• Freedom of speech and expression