Media Laws and Ethics I: The Concept of Law and Ethics in India and the World; the Constitution of India, its Historical Evolution and Relevance; and Freedom of Speech and Expression under Article 19(1)(a) with its Leading Cases
2. The Constitution of India: historical evolution and relevance
The demand for guaranteed rights, including free speech and a free press, was part of the national movement: the Commonwealth of India Bill (1925), the Nehru Report (1928) and the Karachi Resolution of the Congress (1931) each listed fundamental rights. Press freedom was fought for in practice, against the Vernacular Press Act, the press Acts of 1908 and 1910 and the sedition prosecutions of Tilak and Gandhi. The Constituent Assembly first met on 9 December 1946; its Drafting Committee, set up on 29 August 1947, was chaired by B. R. Ambedkar; the Constitution was adopted on 26 November 1949 and came into force on 26 January 1950. The structure of government drew on the Government of India Act 1935, and the chapter on fundamental rights drew on the American Bill of Rights and other models.
The Constitution's relevance to the media is direct. Part III makes fundamental rights enforceable: Article 13 voids laws inconsistent with them, and Article 32 lets any person move the Supreme Court for their enforcement, a right Ambedkar called the heart and soul of the Constitution; Article 226 gives High Courts a wider writ power. The basic-structure doctrine of Kesavananda Bharati (1973) prevents Parliament from destroying the Constitution's essential features by amendment. Article 21, the right to life and personal liberty, has been read to include privacy (K. S. Puttaswamy, 2017), which the media must balance against the public's right to know. Articles 105 and 194 protect legislative privileges, and Article 361A, inserted by the Forty-fourth Amendment (1978), protects substantially true reports of legislative proceedings.
3. Freedom of speech and expression: Article 19(1)(a) and 19(2)
Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. There is no separate clause on the press: in the Constituent Assembly Ambedkar said the press has no special rights beyond those of an individual citizen, since editors and managers are citizens exercising their own freedom. The courts have nonetheless read press freedom into Article 19(1)(a) from the first cases. The right has been held to include the freedom to circulate, to publish in any medium, to broadcast, to receive information (the right to know, recognised in State of Uttar Pradesh v Raj Narain, 1975, and applied to voters' right to know candidates' backgrounds in Union of India v Association for Democratic Reforms, 2002), commercial speech (Tata Press v Mahanagar Telephone Nigam, 1995, departing from Hamdard Dawakhana, 1960), and the right to remain silent (Bijoe Emmanuel v State of Kerala, 1986). The right belongs to citizens; companies have invoked it through their citizen shareholders and editors.
Article 19(2) allows the state to impose reasonable restrictions on the exercise of the right 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. The list is exhaustive: a restriction on any other ground, however attractive, is unconstitutional. It was not always this long. The original clause allowed restrictions only for libel, slander, defamation, contempt of court, decency or morality, and matters that undermine the security of, or tend to overthrow, the State. The Constitution (First Amendment) Act 1951, passed after Romesh Thappar and Brij Bhushan, added public order, friendly relations with foreign States and incitement to an offence and inserted the word "reasonable"; the Sixteenth Amendment (1963) added sovereignty and integrity of India.
4. Leading cases on Article 19(1)(a) and the media
| Case | Facts | Principle |
|---|---|---|
| Romesh Thappar v State of Madras (1950) | Madras banned the entry and circulation of the journal Cross Roads under a public-safety law | Freedom of speech includes freedom of propagation of ideas, secured by freedom of circulation; "public order" was not then a ground, so the ban fell |
| Brij Bhushan v State of Delhi (1950) | A pre-censorship order was imposed on the weekly Organiser | Pre-censorship of a journal is a restriction on the liberty of the press; the order was struck down |
| Express Newspapers v Union of India (1958) | Challenge to the Working Journalists Act 1955 and a wage board's decision | The press is not immune from general laws such as labour law, but a law that directly or inevitably curtails press freedom is invalid; the Act was upheld, the wage board's decision set aside |
| Sakal Papers v Union of India (1962) | A price-and-page schedule tied a newspaper's price to its number of pages | The state cannot curtail circulation or volume to regulate the business side; speech can be restricted only on Article 19(2) grounds |
| Bennett Coleman v Union of India (1972) | Newsprint policy limited the number of pages newspapers could print | Freedom of the press covers both content and circulation; controlling newsprint to limit pages abridged Article 19(1)(a) |
| Indian Express Newspapers v Union of India (1985) | Import duty was levied on newsprint | The press can be taxed, but a tax so heavy that it curtails circulation violates press freedom; the government was directed to re-examine the levy |
| S. Rangarajan v P. Jagjivan Ram (1989) | The certificate of the Tamil film Ore Oru Gramathiley, on reservation, was revoked by the High Court | Expression can be suppressed only if the danger is proximate and direct, "like a spark in a powder keg"; the state must protect expression, not yield to threats of violence; the certificate was restored |
| Secretary, Ministry of I&B v Cricket Association of Bengal (1995) | Dispute over the right to telecast cricket matches | Airwaves are public property; broadcasting is part of Article 19(1)(a); it should be regulated by an independent public authority, not monopolised by government |
| Shreya Singhal v Union of India (2015) | Arrests over online posts under section 66A of the IT Act | Section 66A struck down as vague and overbroad; discussion and advocacy are protected, only incitement may be restricted; section 69A blocking upheld with safeguards; section 79 read down |
| Anuradha Bhasin v Union of India (2020) | Prolonged internet shutdown in Jammu and Kashmir from August 2019 | Speech and trade over the internet are protected by Articles 19(1)(a) and 19(1)(g); indefinite suspension is impermissible; orders must be published, necessary, proportionate and periodically reviewed |
Two lines run through these cases. The first protects the press's economic life: Sakal, Bennett Coleman and Indian Express all held that the state cannot use prices, newsprint or taxes to shrink circulation, because a restriction on the means of publication is a restriction on speech. The second fixes the test for restricting content: Rangarajan's proximate-and-direct nexus and Shreya Singhal's line between advocacy and incitement require a close link between the speech and the harm. Other cases fill in the picture: R. Rajagopal v State of Tamil Nadu (1994) protected publication of material from public records and held that public officials cannot sue for damages over their official conduct unless the publication was made with reckless disregard for truth, while recognising a right to privacy; Sahara India Real Estate v SEBI (2012) allowed courts to postpone publication of reports of a case in narrow circumstances to protect a fair trial.
5. Emergencies and the limits of the guarantee
During a national emergency Article 358 suspends Article 19 automatically, and Article 359 lets the President suspend the enforcement of other fundamental rights. The Emergency of June 1975 to March 1977 showed what this meant for the press: pre-censorship, the Prevention of Publication of Objectionable Matter Act 1976, the abolition of the Press Council and the merger of the news agencies. The Forty-fourth Amendment (1978) responded: Article 358 now operates only when an emergency is declared on the ground of war or external aggression, not armed rebellion; Articles 20 and 21 can never be suspended under Article 359; "internal disturbance" was replaced by "armed rebellion" as a ground for proclaiming emergency; and Article 361A protected the publication of legislative proceedings.
Key takeaways
- Law is state-made and enforced; ethics is voluntary and professional. Indian media law comes from the Constitution, statutes, rules and precedent (Article 141). The US First Amendment (1791), ECHR Article 10 with the UK's Human Rights Act 1998 and IPSO (2014), and UDHR and ICCPR Article 19 frame the world picture; ethical tools include Aristotle, Kant, Mill, Rawls and the Potter Box.
- The Constitution grew from the rights demands of 1925, 1928 and 1931; the Assembly met on 9 December 1946, Ambedkar chaired the Drafting Committee, and it was adopted on 26 November 1949 and commenced on 26 January 1950; Articles 13, 32, 226, 21 (privacy, 2017) and 361A matter most to the media.
- Article 19(1)(a) has no press clause but includes press freedom, circulation, broadcasting, the right to know, commercial speech and silence; Article 19(2)'s eight grounds are exhaustive, widened by the First Amendment (1951: public order, friendly relations, incitement, "reasonable") and the Sixteenth (1963: sovereignty and integrity).
- Leading cases: Romesh Thappar and Brij Bhushan (1950), Express Newspapers (1958), Sakal (1962), Bennett Coleman (1972), Indian Express (1985), Rangarajan (1989), Cricket Association of Bengal (1995), Shreya Singhal (2015), Anuradha Bhasin (2020), with Rajagopal (1994) and Sahara (2012).
- Article 358 suspends Article 19 in an emergency, now only for war or external aggression after the Forty-fourth Amendment (1978), which also shielded Articles 20 and 21 and inserted Article 361A.
Practice questions (10)
Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.
In Romesh Thappar v State of Madras (1950), the Supreme Court struck down a ban on the journal Cross Roads chiefly because:
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Answer: A — Freedom of speech includes freedom of circulation, and "public order" was not then a ground in Article 19(2)
The Court held that freedom of propagation of ideas is secured by freedom of circulation, and that the original Article 19(2) did not include public order, so the ban could not stand; this led to the First Amendment (1951). There is no separate press article, and the other options belong to later cases on film and broadcasting.Brij Bhushan v State of Delhi (1950) is remembered for holding that:
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Answer: B — Pre-censorship of a journal restricts the liberty of the press
The case concerned a pre-censorship order on the weekly Organiser, which the Court struck down as a restriction on press liberty. Newsprint quotas were struck down in Bennett Coleman (1972), criminal defamation was upheld in Subramanian Swamy (2016), and section 66A fell in Shreya Singhal (2015).The principle that "airwaves are public property" and that broadcasting should be regulated by an independent public authority was laid down in:
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Answer: D — Secretary, Ministry of I&B v Cricket Association of Bengal (1995)
The Cricket Association of Bengal case (1995) held that frequencies are public property to be used for the public good and that the right to telecast is part of Article 19(1)(a). Sakal is on newspaper economics, Rangarajan on film, and Anuradha Bhasin on internet access.Which of the following are grounds for reasonable restrictions under Article 19(2)? Select all that apply.
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Answer: A — Defamation; C — Sovereignty and integrity of India; D — Public order
The eight grounds are sovereignty and integrity, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence. "Economic interest" is not a ground, which is why Sakal Papers held that speech cannot be restricted to regulate business.Assertion (A): In Sakal Papers v Union of India (1962), the Supreme Court struck down a scheme linking a newspaper's price to its number of pages. Reason (R): The Court held that freedom of speech cannot be curtailed to regulate the commercial side of a newspaper, except on the grounds in Article 19(2). Choose the correct option.
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Answer: A — Both A and R are true, and R is the correct explanation of A
Both are true and R explains A: the price-page schedule reduced circulation and volume, and because regulating business is not an Article 19(2) ground, the restriction on speech failed. The same reasoning later struck down newsprint page limits in Bennett Coleman (1972).Shreya Singhal v Union of India (2015) struck down which provision?
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Answer: C — Section 66A of the Information Technology Act 2000
Section 66A, which punished sending "grossly offensive" or "menacing" messages, was held vague and overbroad. The same judgment upheld section 69A, the blocking power, with procedural safeguards. Sedition was not struck down; it was kept in abeyance in 2022 and omitted from the BNS.Anuradha Bhasin v Union of India (2020) held that:
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Answer: B — Speech and trade over the internet are protected, and indefinite suspension of the internet is impermissible
The Court held that freedom of speech and the freedom to carry on trade through the internet enjoy protection under Articles 19(1)(a) and 19(1)(g), that indefinite suspension is not permissible, and that suspension orders must be published and reviewed for necessity and proportionality. The other options contradict it or belong to Bennett Coleman.Which numbered amendment to the Constitution added "the sovereignty and integrity of India" as a ground in Article 19(2)? Type the number.
Numerical answer — type the value.
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Answer: 16
The Constitution (Sixteenth Amendment) Act 1963 added sovereignty and integrity of India. The First Amendment (1951) had earlier added public order, friendly relations with foreign States and incitement to an offence, and inserted the word "reasonable".Which of the following statements reflect the Supreme Court's reasoning in S. Rangarajan v P. Jagjivan Ram (1989)? Select all that apply.
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Answer: B — Expression may be restricted only where the danger is proximate and direct, like a spark in a powder keg; D — The state must protect free expression rather than give in to threats of violence
Rangarajan required a proximate and direct nexus between expression and danger and refused to let threats of violence silence a certified film. Prior certification was upheld in K. A. Abbas (1970) and is not questioned in Rangarajan, and the judgment rejected exactly the argument that threatened protests justify revocation.After the Leveson Inquiry, the Press Complaints Commission in the United Kingdom was replaced in 2014 by:
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Answer: A — The Independent Press Standards Organisation (IPSO)
IPSO replaced the Press Complaints Commission in 2014 as the regulator for most of the British press. Ofcom regulates UK broadcasting and communications, while the Press Council of India and the NBDSA are Indian bodies.