Freedom of Speech
Where a law purports to authorise imposition of restrictions on a fundamental right of language wide enough to cover restrictions both within and without the limits of constitutionality
Constitutional Mechanism: liberty of the press
The Constitution of India contains no express declaration in favour of the freedom or liberty of the press, and the reason or one of the reasons for this omission may, I imagine, be that in no period in history and in no country in the world has the press been free, in the sense that the keeper of a press may print and publish any matter he chooses without thereby incurring any risk of punishment. The invention of printing led to the propagation and dissemination, on a far wider scale than had hitherto been possible, of ideas which were subversive of the existing order in Church and State. In 1501 Pope Alexander VI published a bill against unlicensed printing. After the Reformation and the break up of the Holy Roman Empire, the sovereigns of the national states which came into existence, took similar steps to control the press. In England, until 1695 no book or pamphlet could be printed without the imprimatur of the Crown licensor, and the printers and authors of books or pamphlets, which had been issued without it, were liable to be brought before special Court such as the Star Chamber, and most severely punished. Although in 1695, when the House of Commons declined to continue the Licensing Act, the press in England was emancipated from direct state control, in other countries on the Continent of Europe a system of pre-censorship continued until long afterward. In 20th century Europe, in more than one country, the press, on its political side at least, has again been subjected to strict Government control. In Fascist Italy, the responsible editor of every newspaper had to be approved by the prefect of the province. A prefect might warn a newspaper editor who published matter or news to which he took exception and might revoke his recognition of an editor who had been so warned twice in a year. In Soviet Russia, there is no independent press, and any person venturing to propagate ideas, which are, in any way, inconsistent with the communist creed, are liable to the most severe punishment. When we speak of the freedom or liberty of the press, we mean that freedom no doubt a very substantial freedom but nevertheless, a freedom which is definitely limited and circumscribed which is enjoyed by the press in the English speaking world.
In 1784 in the celebrated case of Rex v. Dean of St. Asaph (1784) 3 C T. R. 431 Lord Mansfield said:
The liberty of the press consists in printing without any previous license subject to the consequences of the law.
Now, in England and in America, it is a crime to print and publish matter of certain kinds. It is obvious that the existence of such laws and the consequent dread of punishment must act as a deterrent on persons, who hold certain ideas or opinions, seeking to propagate and disseminate them. Moreover under the law of libel, including the law of seditious libel, not merely is the author of the libel responsible. Responsibility also extends to the publisher and printer and, indeed to every vendor of the publication. As ordinarily, a writer must find a publisher, the publisher must employ a printer, and the printer, in his turn must rely on booksellers to sell the book or pamphlet which he prints, it is clear that the possibility of a writer succeeding in communicating to any large body of the public ideas or opinions the dissemination of which the law regards as culpable is small.
In India, until 1910 the press was in very much the same position as it was in Great Britain and the Dominions and in America. In 1910 the Press Act, however, empowered the executive to demand security from the keeper of a press and the publisher of a newspaper, and in certain circumstances, to declare such security forfeited. The Press Act of 1910 was repealed in 1922, but in 1931 was re-enacted in a modified form. The statute of 1981 was described as “An Act to provide against the publication of matter exciting to or encouraging murder or violence”. In the following year, it was amended in certain particulars by the Criminal Law Amendment Act, 1982, one such amendment being in the title which was altered to “an act to provide for the better control of the press”. The question that could be raised whether, in consequence of Article 19(1)(a) in the Constitution, it is still open to the executive to require the keeper of a press, which has published matter of the kind referred to in certain Clauses of Press (Emergency Powers) Act, 1931, to deposit security. The subject of requiring security is, it is clear to ensure that the keeper of a press, who prints matter of a certain kind, may not evade liability or escape punishment. Such also, it may be observed, is the object of the law which requires the printer of every book or pamphlet to exhibit his name and address on the first or the last page of the book or pamphlet. In England, until the law so provided persons, who were labeled, very often found it a matter of the greatest difficulty to ascertain who was responsible, and in order to enable them to do so, general search warrants had to be issued. There can, of course, be no doubt that a system under which the keeper of a printing press can be required to deposit security is a system of control over the press, but the control so exercised is substantially the same kind of control as is exercised by making it a crime to publish matter of a certain kind. The author of the book or pamphlet, which contains or may appear to contain a libel on an individual or a seditious libel, will ordinarily find it difficult to get it printed which is what the law intends, and he may find it more difficult to get it printed by a printer who has been required to furnish security than by a printer who has not yet been required to do so, which again is what the law intends. Is there, however, in principle any objection to the exercise of this further measure of control by the State? Professor Dicey in his Law of Constitution, 8th Edn., p. 244, observes:
No sensible person will argue that to demand deposit from the owner of a newspaper or to impose other limitations upon the right of publishing periodicals is of necessity inexpedient or unjust.
A fortiori this observation applies to the keeper of a printing press, which publishes leaflets or pamphlets of the kind we are now concerned with. It is, and always has been, well settled both in England and in India that security may be taken from a person who has committed certain crimes or who, having committed a certain crime, is thought to be likely to commit that crime again. As will appear later, a person who publishes matter of the kind referred to in Clauses (a) and (b) of Section 4 (1), Press (Emergency Powers) Act, 1981, commits a crime. It is true that security is, in the first instance, demanded by the executive but against its order there is a right of appeal, and the appeal must be heard by a Bench of three High Court Judges. There is, in substance, in such a case at least no serious departure from what Professor Dicey calls the rule of law. It is also true that, in recent times, so far as I can ascertain, security has never in England been demanded from a printer. But security has, on occasion, been demanded from persons proposing to address public meetings, Wise v. Dunning (1902) 1 K. B. 167 : (71 L.J. K. B. 165). In other words, the taking of security has sometimes been used to fetter the expression of opinion. Article 21 of the Constitution is so drawn as to preserve to the Courts the power to demand security under chap. VIII, Criminal P.C. Why should it be supposed that the Constituent Assembly intended that the practice of requiring the keeper of a printing press to deposit security in order to prevent the publication of seditious libels should cease-? In construing the relevant provisions of the constitution, it is, in my opinion, necessary to keep any such a priori assumption out of one’s mind. Indeed if any assumption at all is to be made, it ought, I think, to be an assumption the other way.
Constitutional Safeguard of freedom of speech and expression
Article 19(1)(a) of the Constitution provides that all citizens shall have the right to freedom of speech and expression. It is clear that the word “expression” is used by way of amplification of the word “speech” which immediately precedes it. Subject to what is contained in Article 19(2), Article 19(1)(a) renders Immune from punishment not merely the individual citizen who gives expression to his opinions in conversation or at a public meeting, but also to the journalist, the writer, the printer, the sculptor, the dramatist, and, in short, every kind of creative artist. The editor of a newspaper, who moulds or is in a position to mould public opinion, may perhaps come within the purview of the article, but in my opinion, the keeper of a printing press quite certainly, does not. Printing may sometimes be an art, but the generality of printers do not give expression to ideas and opinions of their own. They are merely engaged or employed by other persons to give a wider publicity, than could otherwise be achieved, to ideas and opinions of’ theirs. Indirectly, no doubt, the article may operate in such a way as to prevent certain restrictions being imposed on printers. It is, for instance, not open to Parliament to enact a law that, before printing any book or pamphlet, which be may have been employed to print, the printer shall submit it for pre-censorship. The reason, however, why such a law would now be an unconstitutional law is not that it imposes a restriction on the printer, but that, in substance, it is a restriction imposed on the writer or author. It is well known that the Constituent Assembly examined the constitutions of other countries. Now, there are constitutions in which not merely the right to speak, write and publish, but also the right to print is conferred on all citizens. An instance in point is Article 18 of the Belgium Constitution of 1832 which is reproduced in Dicey’s law of the Constitution, Edn. 8, p. 234, and the constitutions of some of the competent States in the United States of America (vide Cooley’s Constitutional Limitation, vol. 2, p. 876). I refer particularly to the Belgium Constitution of 1832 as, not only does it confer on every citizen the right to print, but also prohibits, the taking of security from the keeper of a printing press. It will be observed that, under it, the keeper of a printing press is immune from punishment if the author of the book or pamphlet, which he has printed, is a person who is known and who is domiciled in Belgium. So long as the keeper of a printing press takes the precaution of ascertaining who the author is and that he is domiciled in Belgium and can, in consequence be made liable for the publication of matter which offends against the law, the printer is no more responsible than is the colourman who supplies the canvas and paints with which an artist paints an obscene picture. The article appears to have been drawn in such a way as to enable writers and authors to obtain without any difficulty the services of a printer and so disseminate to the widest possible extent their opinions and ideas. In other words, the right conferred on printers was, in substance, a right conferred on writers and authors. As, however, I have already pointed out it is an integral part of the system of control, albeit indirect control over the press which obtains in the English speaking world that the printer shall be as much responsible at law as is the writer or authors I am unable to read into the word “expression” in Article 19(1)(a) any implied right in writers and authors to obtain the services of printers to enable them to reach the widest possible public. In other words, I can find nothing in the five words contained in this article which leads me inevitably to the conclusion that the power [to demand security from the keeper of a printing press is a power which the executive may no longer exercise.
If this is the correct interpretation of Article 19(1), there is an end of the matter. But if it is assumed , for the sake of argument, that the article does, in fact, confer on the keeper of a printing press a right to print whatever he may choose, and proceed to consider whether the taking of a deposit is not one of the restrictions which may be imposed on the exercise of this fundamental right under Article 19(2). It is clear that the principle object of the Constituent Assembly in enacting this article was to define the limits within which Parliament might, and beyond which Parliament might not, make the dissemination and propagation of ideas and opinions a crime. More particularly, the Constituent Assembly would seem to have restricted within narrower limits the crime, which is ordinarily known as the crime of seditious libel; and given to the citizens of India a right to criticise the Government, which is at least as ample as that enjoyed by the citizens of the United States of America and more ample than has ever been enjoyed by the citizens of Great Britain and the Dominions of the British Commonwealth, If, however, this had been the sole object of the Constituent Assembly, it would not have used the language which it did. The expression “law relating to libel” cannot possibly be construed as connoting nothing more than a law which makes libel punishable. If that were so the provisions of law which requires the name and address of the printer to appear on every book and pamphlet and requires the name of every editor, printer and publisher of a newspaper to appear on every copy of a newspaper would have ceased to be a valid law. For the reasons which I have already indicated, these provisions are part of the law relating to libel. By a parity of reasoning it must, I think, be concluded that the provisions contained in Section 4 (1)(a) and (b), Press (Emergency Powers) Act, 1931, which enable security to be demanded from the keeper of a printing press, are part of the law relating to seditious libel. In order to prevent any misunderstanding, I wish at this stage to point out that Clauses (e) to (i) in Section 4 (1) of the Act enable security to be demanded in a wide variety of circumstances. If the construction which I am myself disposed to put on Article 19(1) is wrong and if printers have a fundamental right to print any matter they may choose, it may well be that, in certain of these circumstances the demand for security can no longer be supported. But the narrow point which I have to decide here is whether security may be demanded from the keeper of a minting press who has published matter of the kind referred to in Clauses (a) and (b) which are severable from the other clauses. In construing these clauses, it is permissible and indeed necessary to employ the method of historical investigation.
Fundamental Right of Language
The Press Act of 1910 was enacted in order to combat terrorist or revolutionary crime. It was repealed in 1922, because such crime had become far less common. It was re-enacted in 1931, because there had been a recrudescence of such crime, and in the following year it was enlarged and modified in consequence of the non-co-operation movement. Although the promoters of this movement desired it to be peaceful and non-voilent movement, certain persons took advantage of it to commit a violent crime in order to effect a revolution and overthrow the existing system of Government. Bearing this in mind, it seems to me quite clear that Clause (a) of Section 4 (1) was aimed at political assassination and the commission of violent crimes intended to overthrow or weaken the State and that Clause (b) was aimed at those who glorified such crime and, more particularly preached the doctrine that in certain circumstances and in order to achieve certain ends, murder was no crime at all. In the Queen v. Most (1881) 7 Q.B.d. 244 : (50 L.J. M. C. 113) one Johann Most was indicted for having published an article in a newspaper extolling the assassination of the Empress of Russia and holding it up as an example to revolutionaries throughout the world. Johann Most was tried and convicted for having published a seditious libel, but was also tried and convicted under 24 and 25 vict. caput 4, which made it an offence for persons to “conspire.,, confiderate and agree to murder any person” the reason being that the punishment provided for that crime was a more severe punishment than could be inflicted for the crime of seditious libel. It was contended that Johann Most could not be convicted as it was not shown that he had come into direct contact with any of the persons who read the newspaper and could not therefore, be said to have incited them. Much reliance could be placed on two decisions of the-Supreme Court Romesh Thappar Vs. The State of Madras, and Brij Bhushan and Another Vs. The State of Delhi. The orders, complained of in these cases were orders prohibiting the entry into or the circulation, sale or distribution in the State of Madras in the one case and in the State of Delhi in the other of two newspapers. In Ireland, front time to time power has ‘been conferred ore the executive to seize and destroy newspapers-or their publications containing seditious libels, A power of that kind is in effect a power of pro-censorship, and, under the Indian Constitution, cannot be conferred on the executive except in periods of emergency. The power conferred by the State of Madras and the State of Delhi, namely, a power to seize a certain newspaper,, whether it contained matter amounting to a seditious libel or not was a still wider power and one which is clearly prohibited by the Constitution. Pre-censorship and still more what done or authorised to be done in Madras and Delhi is a direct invasion of the fundamental right of the editor and journalist who used the columns of these newspapers to give expression to their opinions. What has been done here does not amount to an invasion of the fundamental right of the author of this pamphlet or leaflet. It is true that the press itself has been subjected to a further measure of control, but a control of exactly the same kind as is already imposed by the existence of a law which makes seditious libel a crime. If it is a restriction on any fundamental right possessed by the printer – and I do not myself think he has any it is a restriction permitted by Article 19(2). I” have read and re-read the judgments of the-Supreme Court, and I can find nothing in them myself which bears directly on the point at issue and leads me to think that, in their opinion, a restriction of this kind is no longer permissible. I do not think it necessary to refer to any of the observations of their Lordships except one which occurs towards the end of the judgment which I do mention. Sastri J., there said:
Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.
The Constitution of India has the peculiarity that, instead, of leaving it to Parliament to examine the statute book and repeal any law which infringes on a fundamental right, it imposes on the Judiciary the duty of declaring that Jaw void. In discharging this onerous duty, the judiciary, ought to proceed with caution and circumspection. It ought not to declare an existing law to be void unless it is ineluctably driven to the conclusion that it is, and it ought also to hesitate to come to that conclusion when the consequences of it will be to deprive the executive of a weapon which it may need to combat subversive movements and preserve the safety of the infant State. It ought to be, and indeed, under the Constitution, must be, left to Parliament in its own good time and wisdom to repeal such provisions as are contained in the Press (Emergency Powers) Act, 1931, as it thinks fit.