Only a fair press can be a free press

Only a fair press can be a free press

- By Fali S. Nariman

In the dictionary — not the Oxford or the Cambridge — but in a lesser known work, the Doubter’s Dictionary, "ethics" is defined "as a matter of daily practical concern described glowingly by those who intend to ignore it."

To me "media ethics" means fetters, not freedom. Many years ago the London Times in a grand editorial stressed the importance of public faith in the press as being more fundamental than any constitutional guarantee: "Those who wish to maintain the freedom of a nation must stand behind the editorial freedom of the press, even though they know it will sometimes be abused and often wrong in its judgements. Those in the press who want to maintain its freedom must also try to raise the standard of its news-reporting, its sense of responsibility, its willingness to report all sides and its essential fairness. Only a fair press will retain the public confidence that is needed by a free press."

There we have the right balance — in public perception, it is only a fair press that can really call itself a free press.

Freedom of the press is cherished in all free societies (and tolerated) not for the benefit of the press as an institution but for the greater public good. A.H. Sulzberger, president of the New York Times, made the point many years ago, when he said, "The crux is not the publisher’s freedom to print; it is rather the citizen’s right to know." (William Safire’s Political Dictionary, page 614)

This new right, the right to know, has successfully shouldered itself into a position of pre-eminence under most legal systems of the world including our own.

The role of the press (in referring to the "press," I use the word compendiously encompassing all forms of mass communication including dissemination of news and views in the electronic media) in a state governed by the rule of law is pre-eminent. While it must not overstep the bounds set by law: for instance, for the protection of the reputation of individuals (which includes public officials in the state), it is nevertheless incumbent on the press to impart information and ideas on political questions and on other matters of public interest. Such other matters may also include questions concerning the position and treatment of minorities, and of democratic institutions including courts.

Not only does the press have an obligation to the public which it serves of disseminating all such information and ideas freely and fearlessly — but the public has also the right to receive them. If it were otherwise, the press would be unable to play its vital role of "public watchdog."
The press is also the only means by which politicians and the public can verify whether judges (insular and secretive as a class) are discharging their onerous duties in a manner that is in conformity with the tasks constitutionally and statutorily entrusted to them.

A vigilant press is the handmaiden of effective judicial administration. The press does not simply publish information about cases and trials but subjects the entire hierarchy of the administration of justice (police, prosecutors, lawyers, judges, courts), as well as the judicial processes, to wider public scrutiny.

Free and robust reporting, criticism and debate contribute to public understanding of the rule of law, and to a better comprehension of the entire political and justice system. It also helps improve the quality of these systems by subjecting it to the cleansing effect of exposure and public accountability. "Sunlight" as Justice Brandeis once said, "is the best of disinfectants. And electric light is the most efficient policeman."

But the question remains: is there a legal basis for the notion of a responsible free press? I believe there is: responsible, yes, but not responsible to any government; or to any business tycoon, or magnate or politician; or to any mantra like "media ethics." The press is responsible only to the Constitution which has given the fourth estate this freedom: responsible to help propagate the ideals and purposes in Part IV of our Constitution (Directive Principles of State Policy).

Every Constitution must have an ideal and purpose, and the more I get acquainted with this longest Constitution in the world the more I believe that its heart is in Part IV.

If we look for the reason why we have floundered, over five decades why we have not been able to successfully work the Constitution — despite the efforts of editors, politicians, lawyers, commissions and committees — it is only because we have not had the will to implement the Directive Principles of State Policy — principles declared fundamental in the governance of the country. The Constitution has imposed a duty on the state to apply these principles in making laws: and it is the responsibility of the press to make governments in the Centre and in the states alive to that duty. Call it "ethics" if you like, but that is about the farthest extent I would go in propagating media ethics.

That the press should be responsible and responsive to some ideal is a view not widely shared abroad.

The UN had organised a conference in Durban (South Africa) in August 2001 on racism — which gave rise to much controversy in India as well, because one of the side questions was whether caste was an issue akin to racial discrimination. In her message to that conference, the then UN high commissioner for human rights, Mary Robinson, had a statement assigning to the news media an ethic — what she described as "a moral and social obligation to fight racism and associated evils." But it was not well received by the world press. The World Press Freedom Committee which operates from the US shot off a newsletter, a copy of which was forwarded to me. It took strong exception to the statement. "The news media’s job is to report news — not to support particular social principles," said the chairman of the World Press Freedom Committee. And in a letter to Mary Robinson he said, "The press must not be assigned roles or obligations by outside forces": that was the theme, the so-called justification for absolute press freedom — that is, freedom also to preach racial discrimination or "associated evils"!

The World Press Freedom Committee (in my view) was tilting at windmills. There are no absolutes in freedoms anywhere. In our Constitution we have Article 301 contained in Part XIII. It says that "subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free." It is modelled on Sec. 92 of the Australian Constitution which provides that "trade commerce and intercourse among the states shall be absolutely free." But what is "absolutely free"?

The question arose in a case (from Australia) that went up to the Privy Council: In a celebrated passage frequently quoted, Lord Wright said, "The first question is what is meant by ‘absolutely free’ in Sec. 92. The word ‘absolutely’ adds nothing. The trade is either free or it is not free.

"‘Free’ in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law." [James vs Commonwealth of Australia 1936 (2) AER 1449 at 1473 PC]

Freedom of the press in the US Constitution is expressed in terms which are absolute: "Congress shall make no law … abridging the freedom of speech or of the press…" Professor Tribe calls it the "Constitution’s most majestic guarantee." And yet down the years, the Supreme Court of the US in a catena of decisions has set its face against any absolute freedoms in the free-speech-and-press cases: the decisions are laboriously set out, analysed and studied in the course of nearly 300 printed pages of Professor Tribe’s book. (American Constitutional Law, Second Edition by Lawrence Tribe Chapter 12, pages 785 to 1061)

Freedom of the press not being absolute, should the media then not be sensitive to some aspects in society? How should they react? Let me begin with a personal anecdote.

Before December 1998 I was instructed, and was appearing for quite some time, as the senior counsel for the state of Gujarat in a public interest litigation in the Supreme Court of India — a PIL filed on behalf of tribals who were displaced and to be displaced by the rising height of the Narmada Dam in Gujarat.

The principal question was whether the indigenous people of this country had an inherent right to live wheresoever they chose and in the manner in which they had been living for centuries, or whether and to what extent they could be compelled to shift to higher locations in the wider public interest. Linked to all this was the question of whether there were adequate measures of rehabilitation provided by the state government. While this case was pending, the then chief minister of Gujarat, called on me at my residence in New Delhi.

It was a courtesy call, but since a few days before he called on me I had read from press reports that Christians in certain parts of Gujarat were being harassed and their Bibles were being burnt, I told him that this action (though having nothing to do with the Narmada case) was something which was totally anathema to me and I would like to see this stopped. He assured me it would be, and in fact said that really there was nothing in it.

Then a couple of months later since there was some policy decision to be taken about improved measures of rehabilitation in the Gujarat case, the then chief minister again called on me. The lot of the Christian minorities had worsened by then. The media had reported that not only Bibles, but churches were also being desecrated, and some destroyed, in various parts of the state. I was extremely annoyed and told him that unless this improved I would have to do what I thought was correct in the circumstances.

Again came more reassurances, but all to no effect and then ultimately in December 1998 since nothing was done at all by the then Gujarat government to alleviate the plight of the Christian minorities, I returned my brief and said I would not appear for the state of Gujarat in this or in any other matter. This caused quite a furore.

The point of the story is not my bravado in returning the Gujarat brief, the point is that but for the revelations by the media — that is, its responsibility as a free press to disseminate information which was of concern to the general public — I would have been ignorant of and would not have known (living in the capital city of Delhi) about what was happening in remote parts of Gujarat.

It was the press which brought these attacks on minorities to light. And I think that it disclosed a very important aspect of press responsibility (or if you don’t like the word "responsibility," of press ethos) — which is, to lean always on the weaker side, and to effectively perform the role of an Opposition to a government whether it is a government at the Centre or of a state. This to me is one of the finest attributes of a free press and the essential role of a responsible press. And this is why when dictatorial governments take over and parliamentary systems of governments are given a go by, the press is always the first victim (next come the lawyers especially the human rights activist lawyers, and then the NGOs).


Introducing "media ethics" would make the press supine: my advice is leave it alone because — particularly because — tyranny fears newspapers; not the rest of the media, not television, only newspapers. Tyrants live in fear of them, and suppress them when they can: sometimes they do it gently calling it "media ethics" ("don’t criticise our top leaders etc, etc"). Sometimes they do it not so gently. The infamous Martial Law Decree of General Jaruzelski, (issued in Poland in December 1981), when a wide range of civil liberties were banned, is a case in point. It is worth quoting in full:

"Good afternoon, Comrades,

"I have the responsibility and the honour of providing to you the rules which have been constructed by the People’s Party to ensure that all our citizens enjoy the restoration of order and truth.

"First rule: Distribution of any publications and the use of printing equipment of any kind will require prior government approval.

"Second: Mail, telephone services and other telecommunications are suspended. They will resume as soon as the Censorship Directorate is fully staffed.

"Third: One radio station and one television station will be operating — both from the capital. I will be the commentator.

"Finally, you may ask what you should do to obtain the government approval necessary for any printing. We are working on that. We’ll let you know.

"Meantime, please understand, Comrades, no newspapers."

No newspapers, that was the thrust of the martial law decree in Poland issued in December 1981. And it had its effect, it was only the endurance and courage of the leaders of Solidarity and other great nationalists that helped overthrow the Jaruzelski government — but not without a fight, not without bloodshed.

Jaruzelski’s Decree must never happen again, anywhere. It can never happen again in a free society governed by the rule of law.

But what about abuses of information, circulation of false information and character assassination by the press? The Press Council can take care of that — but it must remain a Press Council without much bite: any form of press control degenerates into government control. Are the blessings of a free press really worthwhile?

There is only one answer to this and it was given effectively by India’s Supreme Court way back in 1950 — the year of the birth of our Constitution. Justice Patanjali Sastri speaking for himself (and Chief Justice Kania, and Justices Mahajan, B.K. Mukherjee and Das) in a Constitution Bench decision in Romesh Thapar’s case, said: "Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, that ‘it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits" (Quoted in Near v Minnesota, 233 US 607 at 717-8) (AIR 1950 S.C. 124)

That answer held good in 1950. It must hold good today.


Fali S. Nariman is Senior Advocate, Supreme Court of India, and the president of Bar Association of India