Freedom of the press and the right to broadcast and telecast

Indian Constitutional Law - New Challenges · Unit III · Topic 10 of 21 · 6 min read

Press freedom read into Article 19(1)(a), the newsprint and price-page cases, the airwaves as public property after Cricket Association of Bengal, prior restraint and fair trial, and the new challenges of sealed covers, digital media rules and internet shutdowns.

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On this page

1. Press freedom as a part of Article 19(1)(a)
2. Economic regulation of the press
3. Access, reply and the right to telecast
4. Prior restraint, privacy and fair trial
5. The new challenges
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The Constitution has no press clause; everything rests on Article 19(1)(a) and the restrictions in Article 19(2). An LL.M. answer has to show three things: that the Court built press freedom out of the citizen’s freedom of expression; that it protects the press against indirect, economic controls as well as censorship; and that broadcasting raised a different problem, because airwaves are scarce and were a State monopoly. Then bring in the current challenges.

1. Press freedom as a part of Article 19(1)(a)

Ambedkar told the Constituent Assembly that the press has no special rights beyond those of an individual citizen, so no separate guarantee was needed. The Court has nonetheless treated the press as the main vehicle of the freedom. In Romesh Thappar v. State of Madras, 1950 INSC 14, a ban on the entry of a journal into the State was struck down: freedom of speech includes freedom of propagation of ideas, secured by freedom of circulation. On the same day, Brij Bhushan v. State of Delhi, 1950 INSC 15, struck down an order of pre-censorship on a weekly. Parliament responded with the First Amendment (1951), which added “public order”, “friendly relations with foreign States” and “incitement to an offence” to Article 19(2) and required restrictions to be “reasonable”.

2. Economic regulation of the press

The press is a business, so the question is how far ordinary economic laws can reach it.

Express Newspapers v. Union of India (1958): the press is not immune from general laws such as wage-fixing for journalists, but a law that directly and inevitably curtails circulation or the freedom of expression is invalid.
Sakal Papers v. Union of India, 1961 INSC 277: an order fixing the price of a newspaper according to its number of pages was struck down; the State cannot curtail circulation to protect smaller papers, because Article 19(2) does not permit restrictions in the interests of the general public.
Bennett Coleman v. Union of India (1972): the newsprint policy limiting the number of pages was invalid; Mathew J dissented, invoking the public’s interest in diversity against concentration of ownership, a theme that reappears in broadcasting.
Indian Express Newspapers v. Union of India, 1984 INSC 231: import duty on newsprint is not immune from review; a tax on the press may be struck down if it is excessive and stifles circulation. Venkataramiah J described the freedom of the press as the heart of social and political intercourse.

3. Access, reply and the right to telecast

Doordarshan and All India Radio were State monopolies, and the cases that opened them up turned freedom of expression into a right of access.

Odyssey Communications v. Lokvidayan Sanghatana, 1988 INSC 178: a serial on superstition could not be stopped on vague apprehensions; citizens have a right to exhibit films on Doordarshan subject to its terms.
LIC v. Manubhai D. Shah, 1992 INSC 181: a public body publishing a house magazine could not refuse a critic’s reply, and Doordarshan could not refuse to telecast an award-winning documentary on unreasoned grounds.
Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995): the airwaves are public property, to be used for the public good; the right to telecast a sporting event is part of Article 19(1)(a); and broadcasting must be regulated by an independent public authority, not controlled by government. The Court relied on the scarcity rationale of Red Lion Broadcasting v. FCC (US, 1969) and on European models of public service broadcasting.

The legislative response was partial: the Prasar Bharati (Broadcasting Corporation of India) Act 1990, brought into force in 1997, made the public broadcaster a statutory corporation; the Cable Television Networks (Regulation) Act 1995 regulates cable content through programme and advertising codes; and the Telecom Regulatory Authority of India regulates carriage and tariffs. There is still no independent content regulator of the kind the Court described, comparable to Ofcom in the United Kingdom.

4. Prior restraint, privacy and fair trial

R. Rajagopal v. State of Tamil Nadu, 1994 INSC 455: the State cannot restrain publication in advance of a prisoner’s autobiography; the remedy is after publication. Public officials cannot sue for damages for criticism of their official conduct unless the statement was made with reckless disregard for truth, a qualified version of New York Times v. Sullivan (1964).
Sahara India Real Estate Corporation v. SEBI, 2012 INSC 388: a Constitution Bench declined to frame general reporting guidelines but held that courts may order postponement of publication of particular matters, for a limited time, where there is a real and substantial risk to the fairness of a trial.
Subramanian Swamy v. Union of India, 2016 INSC 427: criminal defamation was upheld as a reasonable restriction, since reputation is part of Article 21. Critics argue that criminal defamation chills journalism; the offence is retained in the BNS.

Two theories in tension. The liberal theory (Mill, the US “marketplace of ideas”) treats press freedom as freedom from the State. The democratic or public-interest theory, visible in Mathew J’s dissent and in Cricket Association of Bengal, treats it as the public’s right to a diverse supply of information, which may justify regulation of concentrated private power. Indian law uses both: the first against censorship and taxes, the second to justify regulation of broadcasting. Article 10 of the European Convention, as read in Sunday Times v. United Kingdom (1979), combines them through a test of necessity in a democratic society.

5. The new challenges

Licensing and sealed covers. In Madhyamam Broadcasting v. Union of India, 2023 INSC 324, the Court set aside the refusal to renew a news channel’s licence on undisclosed security grounds. Criticism of government policy is not a ground for denial, and national security claims cannot be made in a vacuum; the Court limited the use of sealed-cover procedure and suggested less restrictive means.
Digital media. Shreya Singhal v. Union of India, 2015 INSC 257 struck down section 66A of the IT Act. The 2021 Intermediary Guidelines and Digital Media Ethics Code extended a code of ethics and a government oversight mechanism to digital news publishers; parts of it have been stayed by High Courts. The Press and Registration of Periodicals Act 2023 replaced the colonial Press and Registration of Books Act 1867 for periodicals.
Shutdowns. Anuradha Bhasin v. Union of India, 2020 INSC 31, arose from a newspaper editor’s petition: internet suspension orders must be published, temporary and proportionate.
Horizontal reach. Kaushal Kishor v. State of U.P., 2023 INSC 4, held that restrictions on speech can be imposed only on the grounds in Article 19(2), and that Article 19(1)(a) can be enforced against non-State actors, which bears on media owners and platforms.
Sedition. Section 124A IPC was kept in abeyance by the Supreme Court in 2022; the BNS omits sedition but punishes acts endangering the sovereignty, unity and integrity of India, which critics say carries the same risk for journalists.

How this is examined

Essays: “freedom of the press in India is a judicial creation”; “the right to broadcast and telecast”; press freedom and its new challenges. Short notes: Cricket Association of Bengal, prior restraint, postponement orders, the newsprint cases. Structure the answer as text, the economic cases, broadcasting, the restraints, and the new challenges, with one comparative paragraph.

Now try the real questions: Indian Constitutional Law - New Challenges past question papers.