The High Court of Kerala, considering a case (Inter Media Publishing Ltd vs. State of Kerala - WP(C).No. 10727 of 2013) where a Malayalam newspaper by name “Thejass” was denied Governmental advertisements on the ground of it propagating extremist ideology and thereby creating communal divisions in the Society at large, has in a pellucid judgment observed that the Indian Press has to maintain secular credential while discharging public function, and that their actions must be in conformity with secular values of the State as envisaged in the Constitution. The Court also added that any attempt on the part of the Press to divide the people and country on the line of religious or communal hostility will have to be curbed by any responsible Government
In an exhaustive judgment, Justice A. Muhamed Mustaque adverted to the freedom of Press, its nature of function, limitation on operational freedom of Press, test to classify freedom of press for control and action, and the scope of judicial review of the decisions related to security of the State, and Indian, British and American precedents and authorities on the point and said: “Any negative approach by Press denouncing fundamental constitutional values such as secularism will have a cascading effect on public reasoning to impair the collectivity, integrity and unity of the nation. The registration under the PRB Act 1867 must be exercised by the Press for the good governance envisaged under the Constitution. Press has to strive for participation of average or ordinary citizen in democratic process with the aim to create a responsibility on them to maintain democratic and constitutional values of State polity. Media or Press must be able to promote such values unregulated with the above objectives. However, their freedom must be stopped when it indulges in polarisation of freedom of thought of citizen on religious line or communal line which is anti-thesis to social or political ethoses of the society intended to be created under the Constitution. Any attempt on the part of the Press to divide the people and country on the line of religious or communal hostility will have to be curbed by any responsible Government.”
The ruling came in the following factual matrix: A writ petition was filed in the Kerala High Court by the publisher of 'Thejass', a Malayalam news daily, aggrieved by the denial of Governmental advertisements in their newspaper.
The petitioner contended that the State has withdrawn the advertisements to the newspaper “Thejass” without any justifiable reasons and that the decision of the Government was without affording an opportunity of being heard.
The State's version for denial was on the ground that all the main Directors of Thejass, except one Director, are former activists of the Students Islamic Movement of India, a banned organisation and are acting as the main leaders of the Popular Front of India (for short, “PFI”). The State also contended that the editorial policy of “Thejass” is based on the ideology of PFI which has a clandestine agenda of islamisation of society by promoting conversion, communalisation of issues with a view to the benefit of Islam, recruitment and maintenance of a branded committed indoctrinated muslim youth for undertaking actions including selective elimination of persons, who in their perception are enemies of Islam.
The State further contended before the Single Judge that PFI utilises “Thejass” daily to propagate its extremists ideology among its readers and various news items published in Thejass daily clearly expose communal agenda and therefore, the State is of the view that Thejass is acting as a catalyst for polarisation and is creating communal divisions in the Society at large.
Dealing with the nature and function of the Press, Justice Mustaque held that the registration of the Press under the PRB Act 1867 and the control exercised by the Press Council under the PCI Act 1978 is clearly indicative of the public function discharged by the Press. The High Court said: “Press function though a private activity, is having public element and is also bound by the standards applicable to the State in respect of the dissemination of information and reporting. The functional duties discharged by the Press also postulate that it discharges public function..
The Press functions for collective benefit of the public. The reporting of information and circulation of ideas through Press thus, have the public element”.
With respect to the limitation on operational freedom of Press, Justice Mustqaue opined that the Press has inherent limitation on their freedom based on the criteria of restriction under Article 19(2) of the Constitution. The High Court of Kerala held that the Press is also having same freedom as available to the individual but added the caveat that though seemingly individual freedom and freedom of Press appears to be one and the same, it has a significant difference while such freedom is practised. Elucidating the fine distinction between individual freedom and Press freedom, the Court said: “An individual has freedom to think in terms of his aspiration unless his aspiration confronts with any positive law of the State as framed or enacted under Article 19(2) of the Constitution. His ideas and thoughts even if it is in not conformity with the constitutional values, remain unfettered unless it is encroached upon any area restricted in terms of Art.19(2) of the Constitution (see S.153 A of IPC, Unlawful Activities (Prevention) Act, 1967). However, Press has no such freedom. The liberty of the Press is to disseminate information or idea in circulation. Since it is public function, it has bounden duty and responsibility to discharge its functions in conformity with the constitutional values and ideals, and without any repugnancy to principles under Art.19(2) of the Constitution. Therefore, Freedom of Press must take into account, values of constitutional polity as envisaged under the constitution while discharging its function as like any other public functionary under the Constitution. The keeper of such values cannot denounce those values as the same would be repugnant to the responsibility attached to the very nature of the public function being discharged by them. Thus, the Press has inherent limitation on their freedom based on the criteria of restriction under Article 19(2) of the Constitution.”
Discussing the principle of Secularism, the High Court of Kerala held that the Indian Press has to maintain secular credential while discharging public function. “Their actions must be in conformity with secular values of the State as envisaged in the Constitution. Any negative approach by Press denouncing fundamental constitutional values such as secularism will have a cascading effect on public reasoning to impair the collectivity, integrity and unity of the nation. The registration under the PRB Act 1867 must be exercised by the Press for the good governance envisaged under the Constitution. Press has to strive for participation of average or ordinary citizen in democratic process with the aim to create a responsibility on them to maintain democratic and constitutional values of State polity. Media or Press must be able to promote such values unregulated with the above objectives. However, their freedom must be stopped when it indulges in polarisation of freedom of thought of citizen on religious line or communal line which is anti-thesis to social or political ethoses of the society intended to be created under the Constitution. Any attempt on the part of the Press to divide the people and country on the line of religious or communal hostility will have to be curbed by any responsible Government.”
Justice Mustqaue also added that in appropriate circumstances if Press function pose threat to State security, unity and integrity, necessarily sufficient power is vested with the registering authority to de-register the Press.
Next, discussing the question ‘In the context of Press freedom, what could be the prohibited line for the Press?’ the Kerala High Court held: “A Press can advocate presidential form of system in India, instead of Parliamentary system. Though this may appear, is against the very basic structure of the Indian Constitution, it will not amount to threat to the State security or results in public order. However, a Press cannot advocate or incite public for control of the State by a particular religion or by use of theocracy in the governance. This would necessarily pose threat to the unity and integrity of the country which composed of plural religious society or communities. An advocacy or incitement has to be differentiated from discussion. A discussion, in normal course is a deliberation of issues among public. A discussion normally cannot have any impact upon the security of the State or Unity and integrity of the State or also of public order. However, advocacy or incitement, necessarily fall within the prohibited line. The objective line of test is based on the purpose of reporting by the Press. Any distorted version with the intention to polarise people on communal line, certainly would fall within the prohibited line. The proximate relationship between advocacy or incitement and threat caused to the unity and integrity of the Nation or security of the State or public order or decency or morality and other areas referred in Article 19(2), is the gauge to restrict freedom of speech and of the Press. If security of India and sovereignty and integrity of India or friendly relationship with foreign state is imminent, necessarily, it warrants urgent action to deny the very right to function as a Press based on the registration. It all depends upon the assessment of the dissemination of information and ideas reported for such action. In the matter relating to the public order or decency or morality, it is also open for the State to regulate activity to remove the evil. As has been noted it is all for the State to adjudge after analysing the function of the Press.”
Moving on to the scope of judicial review in State’s measures to regulate freedom of Press for security, the High Court of Kerala said that the standards of review in reviewing the decision of the Government in security related issues must be placed at different pedestal by the Courts. “The Courts have to be cautious by applying normal test like unreasonableness, proportionality, secondary review or strict scrutiny in the matters reviewing decisions of security of the Country,” said Justice Mustaque.
The Court further said: “the scope of judicial review must be narrowed down to find out whether the State action is consistent with the objectives of criteria under Art.19(2) and materials or evidence relied on by the State are having proximate relation to protect the substantial interest of the State in relation to security, unity and integrity or public order or any other criteria as the case may be under Art.19(2) of the Constitution. If the State is able to show the proximate relation of materials relied on substantial interest of the State, it is not for the Court to assess ‘reasonableness’ of evidence or materials. The wisdom of the Home Department or any Authority analyzing such materials cannot be subjected to judicial scrutiny for reasonableness.”
Coming specifically to the factual controversy, the Court identifying the issues involved in the case said that two points are essentially to be considered: Point No.(i) is that by the decision of the Government, the Government is justified by substantial norm in denying the advertisement and point No.(ii) is that whether due procedure has been followed while denying the advertisement.
On the first issue, the Court said that the Government, necessarily, can apply restriction only when there are substantial grounds as contemplated under Art.19(2) to deny the advertisement. However the High Court said that judicial review was premature in the case at hand as the petitioner's case has not been adverted by procedural due process by the Government.
On the question of procedural due process, the Court said: “In the matter relating to national security, when any right is infringed, no one can demand pre‑audience before taking an action. The exercise now being done by the Government is in fact to secure the measures in terms of security, unity and integrity and public order of the State though it appears that denial was manifested by refusing to award contract. In those circumstances, I am of the view that the Rule of observance of right of pre-audience which is ordinarily demanded when a right is negatived would not apply. In this matter, it can be conceived that the denial was purely as a measure undertaken by the State not to encourage a newspaper which poses threat to the National security, unity and integrity and public order. The Government in its wisdom, thought that if advertisement is given it would amount to promotion of anti-National activities. Thus, observance of the rule of natural justice for pre-audience cannot be demanded by the petitioner.”
The Court however added that due procedure has a different connotation when substantive scrutiny is made based on the materials relied on to take action even based on the grounds referred under Art.19(2) of the Constitution. It noted that the Directorate of Advertising and Visual Publicity, Ministry of Information Broadcasting, issued an advertisement policy in respect of advertisements to be published by various Ministries and Governmental organisations of India whereby the Union Government has taken a decision to avoid releasing advertisements to newspapers/journals which incite or tend to incite communal passion, preach violence, offend sovereignty and integrity of India or socially accepted norms of public decency and behaviour.
The Court however observed that though the Union Government has a definite policy on such issues, nothing is seen from the records as to whether the State has adopted any such policy applicable to all newspapers, though such policy is reflected from the counter affidavit of the Government. Justice Mustaque observed that even in the absence of such a policy, the Government is entitled to evolve such norms but that must be applied in an objective manner to all whom it is intended to govern, otherwise, it would result in arbitrariness and selective discrimination to deny advertisement.
In the said circumstances the High Court directed the Government to constitute within three months a committee preferably headed by the Home Secretary to evaluate and assess the informations provided in the newspaper taking into account of the numerous players in the public domain and take a decision within a further period of three months. The Court ruled that the right of the petitioner to have advertisement in “Thejass”, would depend upon the scrutiny by the committee to be constituted by the Government.
Read the Judgment here.