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Law and Justice: Press, Politics and Judiciary - I*

Freedom of the Press, the fourth estate, 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.

During the deliberations in the Constituent Assembly this omission was noticed. Proposals were made about incorporating freedom of the Press as a distinct fundamental right. According to the Constitutional Adviser, Dr. B. N. Rau, it was hardly necessary to provide for it specifically, because the freedom of expression would include freedom of the Press. In the course of the Constituent Assembly debates, Dr. B.R. Ambedkar expressed the same view and thought that "no special mention is necessary of the freedom of the Press at all".

Our Supreme Court in a series of decisions beginning from Romesh Thapar’s case in 1950 and in subsequent judgments has vindicated this view and has ruled that freedom of the Press is implicit in the guarantee of free speech and expression in Article 19(1)(a) of our Constitution. In other words, it is comprehended in a citizen’s right to freedom of expression, which would include the right to receive information as also the right to disseminate and impart information, ideas and opinions. This right, like every other fundamental right, is not absolute but can be restricted by a law which imposes reasonable restrictions on the limited heads of restrictions specified in Article 19(2).

It is interesting to note that the National Commission to Review the Working of the Constitution has recommended that Freedom of the Press be specifically and expressly guaranteed as a Fundamental Right.What is the content of the Freedom of the Press? A close analysis would indicate that it embraces a variety of rights. The 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 the right of the public to know.

In a democracy which respects the value of an open society and transparency in the Government, citizens are entitled to know the facts about the administration of their country, a right to know every public act, everything that is done in a public way, by their public functionaries. The Press therefore ought to serve as a forum for the public, through which people would know what is happening in the Government and in public institutions. This enables citizens to make intelligent and informed decisions amongst a variety of choices and thus play their part in controlling the Government and enforcing the accountability of the holders of power. That is one aspect of the Government by the people so essential in a democracy.

In essence, the Freedom of the Press serves to enforce accountability and enables the Press to be an instrument of democratic control. The true rationale of the freedom of the Press lies in its ability and willingness to effectively perform its societal role of ensuring that public discussion of governmental and public affairs is free, fair and informed and for that purpose permits expression of opinions and views of all persons, parties and interests and not the agenda of any political party. Thereby, it serves public interest in a pluralistic democracy by throwing up a broad spectrum of views. If we have not grasped this basic truth, then the freedom of the Press is a hollow slogan, a narrow self-serving concept and the encomiums showered on it are undeserved rhetorical flourishes.

What is the role of the Press in politics? What should be the attitude of the Press or a Press person towards the Government, the political parties and politicians? One of the pitfalls of the profession according to the doyen of journalism, the renowned Walter Lippmann, is the tendency to regard themselves as potential political potentates with a constituency to which they are responsible. According to Lippmann "more newspaper men had been ruined by self-importance than by liquor" and he had opportunity to observe the effects of both kinds of intoxication.

The other peril is that when the proprietor or the editor of a newspaper becomes the mouthpiece of a political party there is an end of its moral power. Once a newspaper becomes closely aligned to a political party it is inevitable that it will systematically and intentionally suppress or manipulate information, restrict the content of information and deny accessibility to information to the public who are its readers. When that happens a newspaper is not only stripped of its splendid possibilities for public service but may become a positive danger to the community.

The first commandment for the Press is to resist official blandishments which take a subtle variety of forms ranging from free trips abroad, invitations to State functions and banquets, allotment of residential accommodation and so on. Lippman has rightly warned that the real peril to the Press springs not so much from the pressures and intimidation to which it may be subject but from the sad fact that journalists can be captured and captivated by the company they keep, their constant exposure to the temptation of the subtleties of power in the corridors of power.

It is not suggested that the Press should regard the Government and its officials as untouchable, refuse to cooperate with the Government altogether. There is no reason why the Press and the Government should be implacable foes till judgment day. It all depends upon a host of factors governing a particular situation. Indeed, it would be almost as disturbing to see the Press uniformly attacking the Government as supporting it. That would suggest lack of diversity of approach, a uniformity of opinion which could not stimulate the kind of discourse that democratic societies thrive on. It would indicate that a range of interest groups and opinions was not getting access to the Press for dissemination of their views.

No doubt it is the function of the Press to expose deception, secrecy and corruption and to censure the Government and not to be censored by it. At the same time information about the real achievements of the Government is as important for the citizen’s discharge of civic and political responsibilities as news about the failure of the Government’s policies and projects. A newspaper which consistently withholds information favourable to the Government is not playing its true societal role. A newspaper does not cease to be a watchdog if after full investigation and researching of facts it gives a clean chit to the Government in respect of a particular transaction. To incessantly bite all and sundry is not a display of watchfulness but manifestation of rabidity.

Our judiciary has given generous support and steadfast protection to the Press. Even though our Constitution does not recognize any hierarchy amongst fundamental rights, yet freedom of the Press has been put on a high pedestal by the Supreme Court whose dicta describe this freedom as "the most cherished and valued freedom in a democracy", "one of the pillars of democracy", "the Ark of the Covenant of Democracy", "the most precious of all the freedoms guaranteed by our Constitution".(PIB Features)

*Adopted from the author’s Rajendra Mathur Memorial Lecture, New Delhi, March 19,2002.

**Attorney-General of India.