In the days leading up to this constitutional order, the Indian government began restricting online communication and freedom of movement. On August 2, the Civil Secretariat, the Ministry of Home Affairs and the Government of Jammu and Kashmir advised tourists and pilgrims from Amarnath Yatra to leave the Jammu and Kashmir region of India. As a result, schools and offices have been ordered to remain closed until further notice. On August 4, 2019, mobile networks, internet services and fixed connections were closed in the region. District judges imposed additional restrictions on freedom of movement and public assembly, relying on the power to do so under article 144 of the Penal Code. The Court ruled that the state must provide the orders imposing the restrictions. It referred, first of all, to the difficulties it encountered in determining the legality of the restrictions when the authorities refused to produce the orders imposing those restrictions. Citing the precedent set in Ram Jethmalani v. Union of India (2011) 8 SCC 1, the Court stated that the State was required to disclose information in order to fulfil the right of appeal enshrined in Article 32 of the Indian Constitution. In addition, Article 19 of the Indian Constitution has been interpreted as including the right to information as an important element of the right to freedom of speech and expression.
The Court added: “A democracy committed to transparency and accountability necessarily requires the issuance of orders, because it is an individual`s right to know.” [Para. 15] These fundamental rights compelled the State to act responsibly in order to protect them and prohibited the State from casually withdrawing those rights. The Court reiterated that no law should be passed in secret, as such actions may pose an expected threat to democracy. To clarify its position, the Court quoted James Madison: “A popular government, without popular information or means of acquiring it, is merely a prologue to a farce or tragedy; or maybe both. Knowledge will forever govern ignorance, and a people who intend to be their own governors must arm themselves with the power that knowledge gives. [Para. 16] The State was therefore obliged to take proactive measures to publish a law restricting fundamental rights, unless there was a reason to oppose the secrecy of the public interest. But even in such cases, the court would be the body that weighs the privileges of the state against the right to information and decides which parts of the order could be hidden or redacted.
In this case, the State first claimed the privilege, but then abandoned the application and issued some of the orders, stating that not all of them could be released due to unspecified hardship. For the Court, such a justification was not a valid reason. The case was particularly important because India was in a state of emergency in 1971 during the Indo-Pakistani war, where the president had the power to suspend basic rights. In 1975, the country was supposed to find itself in a similar situation when then-Prime Minister Indira Gandhi reimposed the state of emergency and the press faced censorship. On June 3, a bank of two court judges annulled the FIR, but rejected a request by an FIR review committee to journalists. Citing Indian Express Newspapers (Bombay) Private Ltd v. Union of India, the Court concluded that freedom of the press was the “heart of social and political transport”. In this case, it was repeated that freedom of speech and expression lies not only in the volume of circulation, but also in the volume of news and opinions. Dramatic performance is a form of language and expression. The constitutionality of the film as a means of expression has been upheld in various cases. In this case, where the Supreme Court overturned the madras High Court`s order to impose a ban on a film, as there would be public protests against such a release of the film.
“A large majority of the media are forced to submit. Editors are subtly forced into self-censorship, journalists are denied access to legislation, or imprisoned in fake cases for holding governments to account,” said Deshpande. “Frankly, press freedom in India has become a constitutional value that is more honored in violation than its respect.” All this gives the impression that the struggle for press freedom is doomed to failure from the outset. But before the media gives in to this sense of resignation, they must remember that over the years there have been victories for media professionals in India as well. The courts have played an important role in this regard. Although the judiciary has also restricted freedom of the press, there are several cases in which it has defended the right to expression and expression. Freedom of the press has been incorporated into the Constitution and this right can therefore be invoked by Indian citizens. The Constitution of India includes freedom of the press in two aspects, namely the Preamble and Article 19(1)(a), the right to freedom of speech and expression. In India, before independence, there was no constitutional or legal guarantee of the freedom of an individual or the media/press. At best, some common law freedom could be claimed by the press, as noted by the Privy Council in Channing Arnold v. King Emperor.
“The freedom of the journalist is an ordinary part of the freedom of the subject and whatever the length, the subject in general can go, the journalist too, but outside the legal law, his privilege is not another and not a higher privilege. The spectrum of his claims, criticisms or comments is so broad and no wider than that of any other subject. With purpose and views, the preamble of the Indian Constitution guarantees all citizens freedom of thought, expression, belief, belief and worship, among other things. The constitutional importance of freedom of expression exists in the preamble to the Constitution and is transformed as a fundamental right and as a human right in Article 19 (1) (a) as “freedom of speech and expression”. To achieve the main objectives, freedom of the press was included in freedom of speech and expression, which is a universally recognized right adopted by the General Assembly of the United Nations on 10 December 1948. The essence of the declaration contained in article 19 reads as follows: “Everyone has the right to freedom of opinion and expression, this right includes the freedom to express opinions without interference and to seek, receive and disseminate information and ideas through all media and regardless of borders”. The same view on the freedom to express opinions without interference was adopted by the Supreme Court in Union of India v. Assn. for democratic reforms, in which the Court held as follows: (SCC S. 317, paragraph 38) “Unilateral information, disinformation, disinformation and non-information create an uninformed citizenship that makes democracy a farce.
Freedom of speech and expression includes the right to transmit and receive information, including the freedom to express opinions. In India, freedom of the press is implicit in the freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution. Article 19(1)(a) provides that all citizens have the right to freedom of expression and expression. However, that right shall be subject to appropriate restrictions imposed on the expression of that right for specific purposes in accordance with Article 19(2). In view of this view, Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. The Union of India said: “In today`s free world, press freedom is at the heart of social and political transport. The press has now assumed the role of public educator, enabling formal and non-formal education on a large scale, especially in developing countries, where television and other types of modern communication are still not available to all parts of society. The purpose of the press is to promote the public interest through the publication of facts and opinions, without which a democratic electorate [government] cannot make responsible judgments. Newspapers that provide news and views that have an impact on public administration very often contain documents that would not be acceptable to governments and other agencies.
“The above statement by the Supreme Court shows that freedom of the press is essential to the proper functioning of the democratic process. Democracy means the government of the people, by the people and for the people; It is clear that every citizen must have the right to participate in the democratic process and, in order to intelligently exercise his or her right to vote, a free and general debate on public affairs is absolutely essential. This explains the constitutional position of press freedom in India. The fundamental principle of freedom of the press is the “right of the people to know”. It has therefore received generous support from all those who believe in the free flow of information and the participation of individuals in the administration; It is the primary duty of all national courts to uphold this freedom and to invalidate any law or administrative act that interferes with this freedom and violates the constitutional mandate.