Freedom of Expression of the Media
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1767 of 2021
(Arising out of SLP (C) No. 6731 of 2021)
The Chief Election Commissioner of India ....Appellant
Versus
M.R Vijayabhaskar & Ors. ....Respondents
Hon. Justice D. Y. Chandrachud
held as below
C.2 Freedom of Expression of the Media
24 Article 19(1)(a) of the Constitution guarantees every citizen the right to
freedom of speech and expression. Over six decades ago, in 1958, a Constitution
Bench of this Court, in Express Newspaper (P) Limited vs Union of India15
,
explained that Article 19(1)(a) would carry within it, implicitly, the right to freedom
of the press. The Court held:
―As with all freedoms, press freedom means freedom
from and freedom for. A free press is free from
compulsions from whatever source, governmental or
social, external or internal. From compulsions, not from
pressures; for no press can be free from pressures
except in a moribund society empty of contending
forces and beliefs. These pressures, however, if they are
persistent and distorting — as financial, clerical, popular,
institutional pressures may become — approach
compulsion; and something is then lost from effective
freedom which the press and its public must unite to restore.
A free press is free for the expression of opinion in all its
phases. It is free for the achievement of those goals of press
service on which its own ideals and the requirements of the
community combine and which existing techniques make
possible. For these ends, it must have full command of
technical resources, financial strength, reasonable access to
sources of information at home and abroad, and the
necessary facilities for bringing information to the national
15 1959 SCR 12
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market. The press must grow to the measure of this
market.‖‖
(emphasis supplied)
25 The Constitution guarantees the media the freedom to inform, to distill and
convey information and to express ideas and opinions on all matters of interest.
Free speech and expression is subject to the regulatory provisions of Article
19(2). The decision in LIC vs Manubhai D. Shah (Prof.)16 develops these ideas :
―…The print media, the radio and the tiny screen play the
role of public educators, so vital to the growth of a healthy
democracy. Freedom to air one's views is the lifeline of any
democratic institution and any attempt to stifle, suffocate or
gag this right would sound a death-knell to democracy and
would help usher in autocracy or dictatorship. It cannot be
gainsaid that modern communication mediums advance
public interest by informing the public of the events and
developments that have taken place and thereby educating
the voters, a role considered significant for the vibrant
functioning of a democracy. Therefore, in any set-up, more
so in a democratic set-up like ours, dissemination of
news and views for popular consumption is a must and
any attempt to deny the same must be frowned upon
unless it falls within the mischief of Article 19(2) of the
Constitution. It follows that a citizen for propagation of
his or her ideas has a right to publish for circulation his
views in periodicals, magazines and journals or through
the electronic media since it is well known that these
communication channels are great purveyors of news
and views and make considerable impact on the minds
of the readers and viewers and are known to mould
public opinion on vital issues of national importance…‖
(emphasis supplied)
26 Freedom of speech and expression extends to reporting the proceedings of
judicial institutions as well. Courts are entrusted to perform crucial functions under
the law. Their work has a direct impact, not only on the rights of citizens, but also
the extent to which the citizens can exact accountability from the executive whose
16 (1992) 3 SCC 637
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duty it is to enforce the law. Citizens are entitled to ensure that courts remain true
to their remit to be a check on arbitrary exercises of power. The ability of citizens
to do so bears a direct correlation to the seamless availability of information about
what happens in a court during the course of proceedings. Therein lies the
importance of freedom of the media to comment on and write about proceedings.
This principle was recognized in the Madrid Principles on the Relationship
between the Media and Judicial Independence17. The first principle is formulated
thus:
―1. Freedom of expression (including freedom of the media)
constitutes one of the essential foundations of every society
which claims to be democratic. It is the function and right of
the media to gather and convey information to the public and
to comment on the administration of justice, including cases
before, during and after trial, without violating the
presumption of innocence.‖
This principle is recognized within Indian jurisprudence, where the media has full
freedom to report on ongoing litigation before the Courts, within certain limitations,
bearing on the need to ensure that justice between parties is not derailed.
27 The media has over the years, transitioned from the predominance of
newspapers in the printed form, to radio broadcasts, television channels and now,
to the internet for disseminating news, views and ideas to wide audiences
extending beyond national boundaries. The internet, including social media, have
refashioned and, in significant ways, revolutionized the means through which
information is relayed. At every stage of this transition, new questions have been
17 These principles were issued by a group of 40 distinguished legal experts and media
representatives, who met in a meeting convened by the International Commission of Jurist‘s Centre
for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, available at
<https://www.icj.org/wp-content/uploads/1994/01/madrid-principles-on-media-and-judicialindependence-publication-1994-eng.pdf>
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raised about how court processes will adapt to the change, so that the rights of
the parties before the courts and processes of justice are not affected18. However,
while these are valid concerns, they should never be a good enough reason for
Courts to not engage with evolving technology. Technology has shaped social,
economic and political structures beyond description. The world is adapting to
technology at a pace which is often difficult to catalogue, and many of our citizens
are becoming digital natives from a young age. It is understandable that they will
look towards modern forms of media, such as social media websites and
applications, while consuming the news. This, understandably, would also include
information reported about the functioning of courts. Hence, it would do us no
good to prevent the new forms of media from reporting on our work. It was
keeping this principle in mind that the Lord Chief Justice of England and Wales, in
the context of the use of live text-based forms of communication (including
Twitter) to report on court proceedings, noted thus19:
―It is presumed that a representative of the media or a legal
commentator using live, text-based communications from
court does not pose a danger of interference to the proper
administration of justice in the individual case. This is
because the most obvious purpose of permitting the use
of live, text-based communications would be to enable
the media to produce fair and accurate reports of the
proceedings. As such, a representative of the media or a
legal commentator who wishes to use live, text-based
communications from court may do so without making an
application to the court.‖
(emphasis supplied)
18 Daniel Stepniak, ‗Technology and Public Access to Audio-Visual Coverage and Recordings of
Court Proceedings: Implications for Common Law Jurisdictions‘ 12 William & Mary Bill of Rights
Journal 791 (2004)
19 ‗Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) from
Court for the Purposes of Fair and Accurate Reporting‘ available at <https://www.judiciary.uk/wpcontent/uploads/JCO/Documents/Guidance/ltbc-guidance-dec-2011.pdf >
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28 Our Court has performed its modest part to acknowledge the rapid pace of
the development of technology, and our need to keep up. In Swapnil Tripathi
(supra), it noted:
―C. Technology and Open Court
84. In the present age of technology, it is no longer sufficient
to rely solely on the media to deliver information about the
hearings of cases and their outcomes. Technology has
become an inevitable facet of all aspects of life. Internet
penetration and increase in the use of smart phones has
revolutionized how we communicate. As on 31-3-2018, India
had a total of 1,206.22 million telecom subscribers and
493.96 million internet users. [Telecom Regulatory Authority
of India, the Indian Telecom Services Performance
Indicators January-March, 2018. Available at:
<https://trai.gov.in/sites/default/files/PIReport27062018_0.pd
f>.] Technology can enhance public access, ensure
transparency and pave the way for active citizen involvement
in the functioning of State institutions. Courts must also take
the aid of technology to enhance the principle of open courts
by moving beyond physical accessibility to virtual
accessibility.‖
Acceptance of a new reality is the surest way of adapting to it. Our public
constitutional institutions must find better responses than to complain.