Madras High Court
Nakkheeragopal, Editor, Nakkheeran ... vs State Rep. By The Secretary To ... on 19 September, 2001
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER
1. Heard Mr.P.T.Perumal, the learned counsel for the petitioner.
2. Mr.R.Muthukurharaswamy, learned Additional Advocate General takes notice on behalf of the respondent - Government.
3. The Press, particularly after the advent of the electronic communication, truly gains global status as perhaps, the most significant trend related to freedom of Press is world-wide movement towards democratic self-government. The freedom of speech and expression and of press are the foundation of all democratic organisations and are essential for the proper functioning of the process of democracy. India, being one of the major democratic countries, the freedom of Press requires all the more emphasis, unlike in Communist countries and dictatorial Governments where the freedom of press is non-existent, as those Governments own and control all media effectively and limit the role of the press as an instrument of propaganda by various types of control, viz., by government ministries, licensing agencies, censorship boards etc., restricting the freedom of Press. The democracy, namely, the Government of the people, by the people and for the people, cannot function unless the people are well informed and free to participate in public issues by having the widest choice.
4. If the freedom of speech and expression is the foundation on which the edifice of democracy is built up, the freedom of press is a corner stone. The freedom of press, therefore, is the heart of the social and political intercourse of democratic institutions. Hence, it is a primary duty of the Courts to uphold the freedom of press and invalidate all the laws and the administrative or executive action, which infringes the freedom of press, as cautioned by the Apex Court in Indian Express Newspapers (bombay) P Ltd. v. Union of India, .
5. The petitioner, who is an editor and publisher of the Tamil Political Bi-weekly, namely 'Nakkheeran', Tamil Magazines, namely 'Udhayyam', 'Omm', 'Iraijyodhidam' and 'Cinekoothu', questions the jurisdiction of the Government seeking the Commission of Inquiry appointed under G.O.Ms.No. 960, Public (Law and Order-F) dated 16.8.2001, to suggest norms and guidelines to be followed by the media persons, who cover processions and demonstrations in order to ensure their protection, including the safe distance to be maintained by them, etc., and the validity of the same, on the ground that it infringes the freedom of Press conferred under Article 19(1)(a) of the Constitution of India, and that the same is excessive, arbitrary, and therefore, violative of Article 14 of the Constitution of India.
6. In brief, the Government, as notified in G.O.Ms.No. 960, Public (Law and Order-F) dated 16.8.2001, taking note of the alleged incidents of violence that occurred during the procession taken out by the Dravida Munnetra Kazhagam (D.M.K.) party-men on 12.8.2001 in Chennai, in which two persons were reported to have died due to firing by police and number of persons including police personnel and media persons were said to have been injured, is of the opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making an inquiry into the said definite matter of public importance and therefore, in exercise of the powers conferred under Sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952), appointed a single member commission of inquiry on the following terms of reference:
(i) to inquire into the incidents of violence that occurred during the procession taken out by the D.M.K. Party-men on the 12th August, 2001 at Chennai, the causes thereof and the circumstances that necessitated the use of force by the police and whether the force used by the police was minimum required and justified;
(ii) to inquire into the causes and circumstances leading to the casualties and sustaining of injuries by the public, police personnel and media persons in the incidents on 12th August, 2001 during the procession taken out by the D.M.K. Party-men at Chennai; and
(iii) to suggest norms and guidelines to be followed by the media persons, who cover processions and demonstrations in order to ensure their protection, including the safe distance to be maintained by them, etc.
7. Hence, the petitioner seeks a writ of Certiorari to quash the terms of reference in para No. 3(iii) in the G.O.Ms.No. 960, Public (Law and Order-F), dated 16.8.2001, (hereinafter referred to as 'the impugned term of reference') holding it unconstitutional and violative of Article 19(1)(a) of the Constitution of India. The impugned term of reference referred to the Commission of Inquiry reads as follows:
"to suggest norms and guidelines to be followed by the media persons, who cover processions and demonstrations in order to ensure their protection, including the safe distance to be maintained by them, etc." (Italics supplied)
8.1. Mr.P.T.Perumal, learned counsel appearing for the petitioner, contends that:
a) the impugned term of reference requiring the Commission to suggest norms and guidelines to be followed by the media persons, who cover processions and demonstrations in order to ensure their protection including the safe distance to be maintained by the media persons, offends and infringes the freedom of press, as it proposes to impose prohibitory guidelines, prescribing the distance to be maintained by the media persons who propose to cover processions and demonstrations;
b) the impugned term of reference has no nexus to the object sought to be achieved by the Commission of Inquiry which is appointed to inquire into a matter of public importance relating to the incidents of violence that occurred on 12th August, 2001 in Chennai;
c) the restriction sought to be suggested, will not, in any way, fulfil the fundamental rights of freedom of press guaranteed to the media persons under Article 19(1)(a) of Constitution of India; on the other hand, the restrictions sought to be suggested will only frustrate and defeat the freedom of press conferred under Article 19(1)(a) of Constitution of India;
d) the Government has no power to make any nature of norms, guidelines or prescriptions to be followed by media persons violating the freedom of press guaranteed under Article 19(1)(a) of the Constitution of India; Otherwise, such norms and guidelines prescribing the distance to be maintained by the media persons to cover processions and demonstrations will be ultra vires Article 19(1)(a) of the Constitution of India;
e) the impugned term of reference is illegal in as much as it proposes to impose a prior restraint on media persons and therefore, the same is excessive and arbitrary and hence violative of Articles 14 and 19(1)(a) of the Constitution of India;
f) even if the Government proposes to impose a reasonable restriction on the freedom of speech and expression and of press, exercising the power under Article 19(2) of the Constitution of India, the same is permissible only by an appropriate legislation subject to the grounds that are specifically provided under Article 19(2) of the Constitution of India, following due process of law; and
g) in any event, the impugned term of reference is contrary to the ratio laid down by the Apex Court in Rajagopal R. v. State of T.N., and Indian Express Newspapers (Bombay) P Ltd v. Union of India, ;
8.2. Mr.P.T.Perumal, learned counsel appearing for the petitioner has also invited my attention to the challenge before the Apex court in Writ Petition (C) No. 80 of 1998, as to the validity of the guideline issued by the Election Commission of India on 20.1.1998 to the Press Council that, no newspaper shall publish exit-poll surveys, however genuine they may be, till the last of the polls is over, on the ground that the media could not be restrained in the absence of any specific law in the context of basic right of 'free speech and expression' and also in the context of practical inability to enforce any restraint in respect of foreign electronic and print media, etc. Mr.P.T.Perumal submits that even though the Election Commission initially attempted to justify the said guideline of "exit-poll survey ban" on publication has the force of law under Article 324 of the Constitution of India and the Election Commission itself could take suitable action against those who breach the said guideline, the same were outside the purview of the Court to consider in view of wide powers of the Election Commission under Article 324 of the Constitution of India, to conduct free and fair election, the Election Commission, realising that they have no authority, under the existing law, to impose such a guideline except to appeal to the Parliament to have a free and frank debate on the subject and to arrive act an appropriate decision, withdrew the said exit-poll survey ban guideline and consequently, the Apex court, by an order dated 14.9.1999, disposed of the said Writ Petition (C) No. 80 of 1998, challenging the exit-poll survey ban on publication cases, recording the decision of the Election Commission to recall the said guidelines.
8.3. Strongly relying on the "exit-poll survey ban case', Mr.P.T.Perumal, learned counsel for the petitioner, contends that in the absence of any specific law, no norms or guidelines could be suggested by the Commission of Inquiry, infringing the freedom of speech and expression and of press, conferred under Article 19(1)(a) of the Constitution of India, and that even if such norms or guidelines were enacted as a law by the Parliament, even then, such law would be violative of the basic right of free speech and expression and of press.
8.4. Much impressive efforts have been taken by Mr.P.T.Perumal, learned counsel for the petitioner, to explain the gravity of violence that had occurred during the procession taken out by the D.M.K. party men on 12th August 2001 in Chennai, bringing to my notice that at least a dozen of journalists and media persons were extensively injured during the violence and some of them are Dinamani reporter Murugan, Aaj Tak Correspondent Jayashree, Nakkheeran reporter Prakash, Zee TV cameramen Manish and Yessiah, The Hindu photographer Murthy, Indian Express Photographer B.A-Raju, Kumudam Reporter photographer Pudur Saravanan and others. Mr.P.T.Perumal also submits that the police team led by Deputy Commissioner of Traffic (North) Sandeep Rai Rathore and Joint Commissioner (South) J.K-Tripathy lathicharged the media persons covering the D.M.K. rally and snatched film rolls from the photographers, and when the rolls were demanded by the media persons, Inspector Selva Ganapathy said that they should not even get their cameras and asked them to get lost. And, as a result, the media persons went on fasting, objecting the violence caused on the press/media persons on 12.8.2001.
8.5. According to Mr.P.T.Perumal, in the context of the facts and circumstances referred to above which ted to the appointment of the one member Commission of Inquiry to inquire into the incidents of violence that had occurred during the procession taken out by D.M.K. party men on 12th August 2001 at Chennai, wherein the press persons, including media persons, were said to have been injured, it would be more appropriate to seek the Commission to suggest norms and guidelines to be followed by the police to provide adequate safety measures to protect the interest of media persons who cover the processions and demonstrations, in order to ensure their protection, which alone would have a direct nexus to the object sought to be achieved by the impugned appointment of the Commission of Inquiry, instead of seeking the Commission to suggest norms and guidelines to be followed by the media persons who cover the processions and demonstrations, to ensure their protection, including the safe distance to be maintained by them, which lacks nexus to the object sought to be achieved by the impugned appointment of the Commission of Inquiry.
9. I have bestowed my careful consideration to all the submissions of the learned counsel for the petitioner.
10. The main thrust of arguments of Mr.P.T.Perumal, learned counsel for the petitioner, is that the impugned term of reference violates the freedom of press guaranteed under Article 19(1)(a) of the Constitution of India and also the same is arbitrary, excessive, and therefore, infringes Article 14 of the Constitution of India, and no restriction could be made to interfere with such freedom of Press, as there is no law empowering the State or its officials, to impose a prior restraint upon the Press/media.
11. It is well settled in law that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, undoubtedly, includes the freedom of press, as held in Sakal Papers (p) Ltd. v. Union Of India, . The very idea of freedom of speech and expression necessarily connotes a right to express and to communicate to others. Although the expression 'freedom of press' is not used under Article 19(1)(a) of the Constitution of India, there is no doubt that the liberty of the press wilt certainly come within the ambit of Article 19(1)(a) of the Constitution of India, because, a constitutional provision is never static, it is ever-evolving and ever-changing and therefore does not admit a narrow, pedantic or syllogistic approach. It was the broad approach adopted by the Court, which enables them to chart out the contours of ever-expanding notions of press-freedom.
12. Freedom of Speech and Expression therefore, not only includes the right to freedom of Press but also it includes the right to acquire information and consequently, the right to acquire information includes the right to access to the source of information as held in Prabha Dutt v. Union of India, . The right to access to the source of information 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. The people have conferred authority on the Government and such authority is to be controlled by public opinion, not public opinion by authority as held in West Virginia State Board v. Barnette, 1942.(319) U.S. 624. Therefore, in any set-up, more so in a democratic set-up like ours, any attempt to deny such right to access to the source of information must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution of India.
13. The freedom of expression and of press is the right to gather and publish the information or opinion without any control or fear of publishing. It applies to all types of communication and publications, viz., printing, broadcasting in the radio, exhibiting in films and through television programmes, etc. However, the freedom of expression and of press is not absolute, unlimited and unfettered at all times and in all circumstances as it would lead to disorder and anarchy as held in Harijai Singh Case, . Therefore, the constraints on the freedom of press in a free society are controversial and are consistently being redefined by the judiciary.
14.1. In an American case, Grosjean v. American Press Co., 1935 (297) U.S. 233, it is held that a free press stands as one of the great interpreters between the Government and the people. To allow it to be fettered is to fetter ourselves.
14.2. In an American case, Thomas v. Collins, 1944 (323) U.S. 516, it is held that the freedom of press, in short, forecloses the State from assuming a guardianship of the public mind.
14.3. In a Canadian Case, Dionne v. City of Montreal, 1956 (3) D.L.R. 727. It is held that freedom of discussion is essential to enlighten public opinion in a democratic State; it. cannot be curtailed without affecting the right of the public to be informed through sources independent of the Government concerning matters of public interest.
15. Even if any norms or guidelines were to be enacted by the State, by due process of law, the same shall be subject to the grounds prescribed under Article 19(2) of the Constitution of India, as held in L.I.C. Of India v. Manubkai D.Shah, .
16. Article 19(2) of the Constitution of India, which has relevance, may also be reproduced:
"Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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."
17. Article 19(2) of the Constitution of India enables the Government to impose reasonable restriction in the interest of public order among other grounds mentioned therein. The Government could restrict the right of press in two ways (i) by restraining the press from publishing certain materials and (ii) by punishing those who publish matters that are considered seditious, libellous or obscene and that are prohibited by any law in force. The first is a prior restraint and the second is a post restraint.
18. The restrictions made in the interest of 'public order' should be for the benefit of the public, and such restrictions must also be reasonable. The reasonableness could be decided only on a conspectus of all relevant facts and circumstances. The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict, as held in State of Madras v. V.G.Row, . Viewed through the lens of 'reasonableness', it is certainly a serious encroachment on the valuable and cherished right to freedom of speech and expression if the Press is prevented access to the source of information, but for which, the right to acquire information itself will be in jeopardy. As a result, the right to press, much less the right to speech and expression, shall have no existence.
19. Our social interest ordinarily demands the free propagation and interchange of views; but circumstances may arise when the social interest in public order may require a reasonable subordination of the social interest in free speech and expression to the needs of our social interest in public order. The Constitution recognises this necessity and has attempted to strike a balance between the two eyes of the society, viz., social interest and public order. The Constitution permits the imposition of reasonable restrictions on the freedom of speech and expression and of Press in the interest of 'public order' under Article 19(2) of Constitution of India.
20. The crucial question must always be; Are the restrictions imposed on the exercise of the rights under Article 19(1)(a) of the Constitution of India reasonable in view of all the surrounding circumstances? in other words, are the restrictions reasonably necessary in the interest of 'public order' under Article 19(2) of the Constitution of India? it is answered that there must be a proper balance between the freedom guaranteed under Article 19(1)(a) of the Constitution of India and the reasonable restriction permitted under Article 19(2) of the Constitution of India after taking into account the prevailing social values.
21. The reasonable restriction should be from the stand point of public interest but not from the perspective of the person who claims the freedom of speech and expression and of press and who complains against the restriction imposed. Assuming, the impugned term of reference is complained as a restriction to the right to access to the source of information, when such restriction reaches a state of prohibition, the Court is obliged to take special care to ensure that the test of reasonableness is satisfied, keeping the public order to prevail, as it is well settled in law that the right of an individual may have to yield to the larger interest of the community.
22. The ground 'Public Order' for imposing a reasonable restriction itself was introduced by the Constitution (First Amendment) Act, 1951, in order to meet the situation arrived from the decision of the Supreme Court in Romesh Thappar v. State of Madras, , that ordinary or local breach of public order is no ground for restriction of freedom of speech guaranteed by the Constitution of India. That apart, following the said decision, it was held in some cases that incitement to individual murder or promoting disaffection amongst classes did not tend to undermine the security of the State or was not, accordingly punishable under the Constitution of India. It was, therefore, to override the above judicial decision in Romesh Thappar Case, , the ground 'Public Order' was inserted by the Constitution (First Amendment) Act, 1951. Though the scope of several grounds specified in Article 19(2) of the Constitution of India may sometimes overlap, they must be ordinarily intended to exclude each other. So interpreted, 'Public Order' is synonymous with public peace, safety and tranquillity as held in Supdt. Central Prison, Fatehgarh v. Ram Manohar, and Madhu Uanaye v. Sub Divisional Magistrate, Moghyr, .
23. No doubt, the concept of 'Public Order' must be distinguished from the popular concept of 'law and order' and of 'security of State', which form three 'concentric circles'. Of which 'Law and Order' represents the largest circle, within which is the next circle representing 'Public order' and the smallest circle representing 'security of the State' as held in Ram Manohar Lohia v. State of Bihar, . Hence, an activity which affects 'law and order' must not necessarily affect 'public order' and an activity which may be prejudicial to 'public order' may not necessarily affect the 'security of the State' as held in Bhupal Chandra Ghosh v. Arif All, . The absence of 'public order' is an aggravated form of disturbance of public peace, which affects the general current of public life. For example, the restriction on the use of loud speakers likely to cause a public nuisance or affecting the health of the inmates of residential premises, hospitals and the like has been held as a reasonable restriction in the interest of Public Order in Rajani Kant Verma Case, , Anantha Prabhu Case, and in State of Rajasthan v. Chawle, . But the total prohibition of loud speakers at any time may constitute an unreasonable restriction, as held in Anantha Prabhu Case, .
24. Since it is already held in Virendra v. State of Punjab, that the freedom of press, which is implied in the freedom of speech and expression guaranteed under Article 19(1)(a) of Constitution of India, is not necessarily higher than the freedom of an ordinary citizen which itself is subject to the limitations as are imposed under Article 19(2) of the Constitution of India, the freedom of press as claimed by the petitioner, is subject to the conduct of public officials in the discharge of their official duties as held in Rajagopal R. v. State of T.N., . Long back, the Apex Court in Babulal Parole v. State of Maharashtra, AIR 1965 SC 884 has held that the authorities can taken anticipatory action or place anticipatory restriction on certain kinds of acts in an emergency to maintain public order.
25. The following propositions are derived as a compendium:
(i) The right to access to the.source of information is to be read into the freedom of press protected under Article 19(1)(a) of the Constitution of India, namely, the freedom of speech and expression.
(ii) No restrictions could be made to interfere with the freedom of press, unless 'law' specifically empowers the State or its officials to impose any restraint, either prior or post.
(iii) Even if any norms or guidelines were to be enacted by the State, following due process of law, either on their own or on the suggestions of Commission appointed for the said object, the same would be valid, only subject to the satisfaction of rticle 19(2 of the Constitution of India.
(iv) Any restriction, even imposed by a law, under Article 19(2 of the Constitution of India, the same should not only be in the interest of public, but should also satisfy the test of reasonableness.
(v) The freedom of press is subject to the conduct of public officials in discharge of their official duties.
26. Analysing the submissions of the learned counsel for the petitioner in the light of the above propositions, the apprehension of the petitioner that the impugned term of reference to the Commission to suggest norms and guidelines to be followed by the media persons, who cover processions and demonstrations in order to ensure their protection, including the safe distance to be maintained by them, etc. on the ground that it violates Articles 14 and 19(1)(a) of the Constitution of India is premature, misconceived and unwarranted, as I am of the considered opinion that neither the term of reference nor any norms or guidelines that are sought to be suggested indicating a distance to be maintained by the media persons, who cover processions and demonstrations would not be construed as law by itself within the meaning of Article 19(2 of the Constitution of India, without which, the freedom of speech and expression, much less that of press, cannot be tampered with.
27. The Commission of Inquiry appointed under the Commissions of Inquiry Act, 1952, is purely a fact finding body, which has no power to pronounce a binding or definite judgment, and the powers of the respondent-Government to appoint a Commission of Inquiry under Section 3(1) of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952), by G.O.Ms.No. 960, Public (Law and Order-F) dated 16.8.2001 is not questionable. In this regard, I am reminded with the well settled principle in law that the Commission has no power of adjudication in the sense of passing an order which can be enforced proprio-vigore when the Commission is obviously appointed by the Government 'for the formation of its own mind'.
28. As to the contention of the learned counsel for the petitioner that in the. context of the facts and circumstances of the case that led to the appointment of the impugned Commission of Inquiry, the Government ought to have sought suggestions of the Commission for the norms and guidelines to be followed by the police to provide adequate safety measures to protect the interest of media persons who cover the processions and demonstrations, in order to ensure their protection, which alone would have a direct nexus to the object sought to be achieved by the impugned appointment of the Commission of Inquiry, instead of the impugned term of reference, in my considered opinion, it would be improper for this court to entertain such plea, as no writ or direction can be issued to the Government to exercise its power for the same under Section 3 of the Commissions of Inquiry Act, as held in Peoples' Union For Democratic Rights v. Ministry of Home Affairs, .
In fine, finding no merits in the grievance of the petitioner, the writ petition fails and is therefore dismissed. No costs. Consequently, W.M.P.No. 23711 of 2001 is also dismissed.