CONSTITUTIONAL LAW II SUBMISSION

IMPACT OF NATIONAL EMERGENCY ON FREEDOM OF PRESS

Submitted by
Disha Basnet

Division- E PRN-18010223077 Batch-2018-23

Programme- BA-LLB

Symbiosis Law School, NOIDA Symbiosis International

(Deemed University), PUNE

In
January 2020

Under the guidance of

Dr. Shashi Bhushan Ojha
Assistant Professor
Symbiosis Law School, NOIDA Symbiosis International (Deemed University)
 CERTIFICATE

The project titled “Impact of national emergency on freedom of press” submitted to the Symbiosis Law
School, NOIDA for Law of Constitutional Law II as part of Internal Assessment is based on my original
work carried out under the guidance of Dr. Shashi Bhushan Ojha from December 2019 to January 2020 .
The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been duly
acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any, detected later
on.

Signature of the Candidate

Date: 27/01/2020

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 ACKNOWLEDGEMENT

I would like to convey my deep sense of gratitude to my subject teacher Dr. Shashi Bhushan Ojha for his
constant support and guidance in completion of this project . Furthermore , I would like to thank the library
in charge Mr Shriram Sharma who helped me in finding books on my project topic in the library . Last but
not the least I would like to convey a special thanks to my friends who stood by me whenever required in the
entire process of this project completion . Warm thanks to all and especially my professor who gave me this
opportunity to do this wonderful project and while making this project I learned a lot of new skills and thus
increased my information on the very topic .

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 TABLE OF CONTENTS

INTRODUCTION....................................................................................................................5

ISSUES......................................................................................................................................5

BACKGROUND......................................................................................................................6

ANALYSIS...............................................................................................................................6

Indira Gandhi and the Pre-Emergency Period.........................................................................................6

Emergency.....................................................................................................................................................6
Press Censorship: Indira’s Relation with the Press..................................................................................7
ADM Jabalpur case and emergency...........................................................................................................8
Freedom of Press..........................................................................................................................................9
The Print Media’s Response to the Emergency.........................................................................................9
Methods of Press Control............................................................................................................................9
Analysis of the whole..................................................................................................................................10
CONCLUSION.......................................................................................................................12

BIBLIOGRAPHY..................................................................................................................13

LIST OF CASES....................................................................................................................13

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 INTRODUCTION
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without
interference, and impart information and ideas through any media regardless of frontiers.” (Universal Declaration of Human
Rights, 10th December, 1948)

Forty years have passed since the imposition of Internal Emergency in India by the late Prime Minister
Indira Gandhi. The emergency period from 25th June, 1975 to 21st March, 1977 is referred to as the
“darkest period” of independent India as all civil rights were suspended and the freedom of speech and
expression muzzled. The emergency was a big blow to the democratic principles that the country had
cherished after independence. The government invoked Press censorship along with the imposition of
Emergency as it wanted to control and manipulate the Press to suppress public opinion. The Press was
the only independent mass media in India during that time as the radio and the television were controlled by
the government. We will analyze the emergency and its effects on the Press.
To preserve the democratic way of life it is essential that people should have the freedom of express their
feelings and to make their views known to the people at large. The press, a powerful medium of mass
communication, should be free to play its role in building a strong viable society. Denial of freedom of the
press to citizens would necessarily undermine the power to influence public opinion and be counter to
democracy.
Freedom of press is not specifically mentioned in article 19(1) (a) of the Constitution and what is mentioned
there is only freedom of speech and expression. In the Constituent Assembly Debates it was made clear by
Dr. Ambedkar, Chairman of the Drafting Committee, that no special mention of the freedom of press was
necessary at all as the press and an an individual or a citizen were the same as far as their right of expression
was concerned.
The framers of the Indian constitution considered freedom of the press as an essential part of the
freedom of speech and expression as guaranteed in Article 19 (1) (a) of the Constitution.

ISSUES

 On what grounds did Indira Gandhi justify the proclamation of Emergency ?

 What was the habeas corpus case all about ?
 What was the impact of emergency on freedom of press ?

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 BACKGROUND

During the Summer of 1975, as Indira Gandhi became increasingly more threatened by the mounting
criticisms of her government, she declared a state of emergency. Immediately she took control of the press,
prohibiting their reporting of all domestic and international news. The government expelled several foreign
correspondents (mainly American and British) and withdrew accreditation from more than 40 Indian
reporters who normally covered the capital. In recent years, this has probably been the most important
development in the life of the Indian press. From the very beginning of independent India, the Congress
Party of India remained in power in one form or another until March 1977. The declaration of a national
emergency, which is justified under the Indian Constitution, lasted for about 19 months. The emergency was
declared as a result of mounting political pressure exerted upon the government from opposing political
parties which were striving to fight corruption, inflation and economic chaos in the country. Indira Gandhi's
government, rather than taking this as a poltical challenge, resorted to declaring a national emergency and
imprisoning the opposition party leaders, including all dissenting voices from the media. The fundamental
rights of the Indian people were suspended, and strict controls were imposed on freedom of speech and
press.

ANALYSIS
Indira Gandhi and the Pre-Emergency Period
Justice Jagmohanlal Sinha of the Allahabad High Court hearing a petition of electoral malpractices
convicted Mrs. Gandhi of indulging in corrupt campaigning practices in the parliamentary elections of 1971
and declared her election null and void. The conviction meant she could not hold on to the office of prime
minister as well. In a rally in the national capital JP and his associates announced a nation-wide civil
disobedience movement to force her resignation. In his speech JP asked people to make it impossible for the
government to function and asked the armed forces, police personnel and the bureaucracy to refuse to obey
orders they considered “illegal and unconstitutional”. Mrs. Gandhi lightening response was to declare a state
of Internal Emergency in the whole country on 26th June, 1975.

Emergency
Mrs. Gandhi did not choose a democratic or ethical way out following the court mandate and the increasing
opposition pressure. Indira Gandhi advised the President of India, Fakhruddin Ali Ahmed to proclaim a
state of emergency throughout the country on the pretext of ‘internal disturbance’ . Article 352 read at that

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time as follows- 352 (1) if the President is satisfied that grave emergency exists whereby the security of
India or

any part of territory thereof is threatened, whether by war or external aggression or internal disturbance, he
may, by Proclamation, make a declaration to that effect. A Proclamation of Emergency declaring that the
security of India or any part of the territory thereof is threatened, by war or by external aggression or by
internal disturbance may be made before the actual occurrence of war or of any such aggression or
disturbance if the President is satisfied that there is imminent danger thereof .1
The constitution of India does provide emergency provisions to be applied in very specific situations.
Hence, imposition of emergency cannot be out rightly declared as unconstitutional in letter, but in general
the perception was that by this declaration the very spirit of the constitution was killed.
Mrs. Gandhi justified the imposition of Emergency on three grounds. Firstly India’s stability, integrity,
security and democracy were endangered following the disruptive character of the JP movement.
Referring to JP’s speeches she accused the opposition of inciting the armed forces and the police to
rebellion. Second, Mrs. Gandhi wanted to implement a program of rapid economic development for
the poor and the underprivileged. And third she warned the country of foreign intervention and
subversion with the aim of destabilizing and weakening India.2

Press Censorship: Indira’s Relation with the Press

As we are aware along with the imposition of Emergency, censorship on the Press was also declared. Nehru
encouraged the Press to voice its independent opinion, Indira believed that the Press should be the
spokesperson for the government. The difference in their viewpoint was clear from their approach to Press
freedom during two different wars. During the Sino-Indian war of 1962, though censorship was imposed on
the Press there was no effort on the part of the Nehru administration to impose it stringently 3; on the other
hand, at the first announcement of the India-Pakistan war in 1971 censorship on the Press was also decreed.
Indira Gandhi became increasingly threatened by the mounting criticisms of her government, and sensed a
surging support of the Press towards JP and the opposition movement she declared a state of internal
Emergency and took control of the Press, prohibiting their reporting of all domestic and international
news without government consent. Her government expelled 7 foreign correspondents and banned 29
others from entering India. It withdrew accreditation from more than 46 reporters, 2 cartoonists and 6
photographers who normally covered the capital and 258 journalists were arrested during the 21 month
Emergency period4. Kuldip Nayar, an internationally prominent journalist was arrested under MISA
1
(Bakshi, 2009:290).
2
Derek Jones, (Edited) Censorship: A World Encyclopedia, Routledge Publications, 2001, p.1174.
3
Ibid.
4
The Das Commission Report.
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(Maintenance of Internal Security Act). Government advertisements were withheld to 100 newspapers and
periodicals to suffocate them financially. The print media understood it would be difficult to enjoy freedom
during Emergency.

ADM Jabalpur case and emergency

The 1975 ADM Jabalpur Case5, also known as the habeas corpus case, is debatably most controversial
decision of Supreme Court, where a constitutional bench unabashedly declared that under emergency
provisions no one could seek the assistance of any court in India to try and save his liberty, life or limb
threatened to be taken away by the State.

It all started with the ‘the state of UP vs Raj Narain’ 6verdict of Allahabad high court, where the court held
Indira Gandhi guilty of election malpractices and invalidated her election and further barred her for 6 years
from contesting elections. While the High court judgment was appealed to SC, Indira Gandhi, faced by an
unprecedented protest from an opposition united under J P Naryanan, invoked article 352 declaring
National emergency on the grounds of threat from Internal disturbance.

Censorship muzzled the Press, the opposition was silenced and the common man terrorized. The government
made extensive use of preventive detention, arresting people not because they have committed any offence,
but on the apprehension that they may commit one. Many cases were filed in the courts against it and 9 High
Courts gave judgments that even during emergency the courts could entertain a writ of habeas corpus filed
by a person challenging his/her detention

The Government ( Indira Gandhi) decided to appeal against these decisions to the Supreme Court. It was
thus that the Constitutional bench of five Judges came to be constituted to hear case, dubbed as A.D.M.
Jabalpur vs. Shukla.Supreme Court applied doctrine of procedure established by law in letter but not in
spirit and overturned the judgement by high courts, declaring that article 32 –the right to approach to court to
defend fundamental rights- remains suspended under emergency.

The judgement thus closed the doors of judiciary for citizen during emergency.

Freedom of Press
We know that Article 19(1) (a) of the Indian constitution guarantees Freedom of Speech and Expression to
all citizens of India including the Press. The second part of Article 19 enumerates the restrictions on the
Freedom of Speech and Expression. The Indira Gandhi government used the "security of the state" and
"promotion of disaffection" specified in Article 19 (2) as its defense for imposing strict control on the
Press. The airwaves comprising the radio and television were under state control in India during 1975,by

5
ADM Jabalpur vs Shivkant Shukla (1976) 2 SCC 521
6
Indira Gandhi v. Raj Narain A.I.R. 1975 S.C. 2299.
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imposing restrictions through Article 19(2) on the print media the government was successful in controlling
the entire mass media.

The Print Media’s Response to the Emergency

Sadly during Emergency, most of India’s domestic dailies gave up the battle for Press freedom after the
initial protest. Blank editorials appeared as a gesture of protest. Official threats caused these to vanish in no
time. The Hindustan Times, one of the leading English-language dailies, headed by Mr. K.K. Birla, a
prominent Indian industrialist became a strong supporter of the government . The Times of India, one third
of whose directors were government nominees, soon surrendered its independence and reflected the official
line. Political cartoons disappeared overnight and no one dared put out any cartoon of Mrs. Gandhi which
was unflattering. The Hindu, in south India, believed discretion to be the better part of valour and acted
accordingly. There was support for Emergency from even journalists like Khushwant Singh.

Methods of Press Control

It has now become well- known fact that during the emergency Indira Gandhi had a firm grip on the Indian
mass media. This was especially true since radio and television in India are government owned and operated,
for Indira, there was the simple matter of controlling the newspapers in order to achieve a total control of the
mass media. She used at least three methods in manipulating the newspapers (1) allocation of government
advertising; (2) shotgun merger of the newsagencies;and (3) use of fear-arousal techniques on
newspaper publishers, journalists and individual shareholders.
It was the first time after Independence that pre-censorship on the Press have been imposed on the Indian
Press. It implied the government would decide the news and information to be disseminated by the
newspapers on all policies, programs and even individuals. The government issued Central Censorship
Order and Guidelines for the Press in the Emergency period. The Central Censorship Order imposed under
rule 48 of the Defense of India Rules, 1971, addressed all printers, publishers and editors and prohibited
the publication of news, comments, rumours or other reports relating to actions taken by the government
without their first being submitted for scrutiny to an authorized government official (the Censor). In the
initial days an official from the office the Chief Censor officer was sent to each daily newspaper in the
evening7 though later the process was discontinued . Quotations of Rabindranath Tagore, Mahatma Gandhi
and Jawaharlal Nehru were banned as they were used against British rule and now may be used out of
context against the present government 8. Innocuous news’ which had little to do with criticism against
governmental action or measures were not allowed to be published like the black out of some unpleasant

7
Kalpana Sharma, “Himmat” during the Emergency: When the Press crawled, some refused to even bend”, scroll.in, June 23,
2015.
8
Derek Jones, (Edited) Censorship: A World Encyclopedia, Routledge Publications, 2001
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news about the criminal convictions of an actress and of some businessmen. The Censor’s scissors were
applied arbitrarily and in a few cases the decisions ‘bordered on the farcical’9.

Analysis of the whole

In addition to the common man, the judiciary and the media bore the maximum brunt of the excesses of the
emergency. Indira Gandhi ensured that all proclamations and ordinances were not subjected to judicial
review. Mrs. Gandhi amended the Representation of the People Act and two other laws in such a
retrospective manner to ensure that the Supreme Court had no other option but to overturn the Allahabad
High Court verdict. The Supreme Court by a majority of four to one held that a person could be arrested or
detained without legitimate grounds and there was no remedy in the law courts since all Fundamental Rights
were suspended. The attorney-general of India argued for the government that a citizen could be killed
illegally and no remedy was available since there were no Fundamental Rights of the citizen any more. Mrs.
Gandhi misused Article 356 to dismiss the opposition governments in Gujarat and Tamil Nadu.
The fourth Estate of democracy, the media was also not spared. As a result of the Censorship Order, no
news, comment, rumor or other report relating to any action taken under certain provisions of the DIR, or
any action taken under MISA, could be published unless it was previously submitted to Censor (called
authorised officer) for his scrutiny and his permission was obtained. Under various other clauses no news or
report could be published nor any comment made on the Emergency, the Presidential order suspending
Habeas Corpus, the place or conditions of detention of persons arrested under MISA, or about the family
planning programme, or about the imposition of Presidential rule in the Indian state of Tamil Nadu and
Gujrat without the Censor’s prior scrutiny and permission. Among three Press Laws which Prime Minister
Indira Gandhi got enacted during the emergency, through Presidential ordinances issued on 8th December
1975 which were subsequently endorsed by parliament during January.
February 1976, was one repealing the Feroze Gandhi Act 10. A second repealing legislation enacted during
the emergency abolished the Press Council of India that had been established in 1966. In addition to
repealing the Froze Gandhi Act and the Press Council Act, the emergency regime got legislation enacted for
‘Prevention of Publication of Objectionable Matter’. The Act would have placed censorship on a
permanent footing unless, of course, struck down by the higher judiciary after the end of the emergency and
the restoration of Fundamental Rights. Simultaneously with the promulgation of the Censorship Order
certain guideline and instructions were issued to the press. They were purely executive in character and had
no statutory force . Prevention of Publication of Objectionable Matters Ordinance, 1975, provided for
stringent action against publications which excite interference with production, supply or distribution of

9
Ibid.
10
Rajagopal, 1993:138
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essential commodities or services, create disharmony among different sections of the society and indulge in
decent, scurrilous or obscene writings.
Marcus F. Franda11 observed Indira Gandhi's justification for the repression of the Indian mass media was
based on three major assumptions. (1) economic productivity and social justice are more important than civil

liberties and freedom of expression (2) the Press in India was acting in a manner that seriously hindered the
state in its efforts to promote economic productivity and social justice; and (3) a drastic contraction of civil
liberties and Press rights will advance the state's ability to promote those causes. Commenting on this
rationale for Press censorship, Henry Hart12 wrote: it is premature to pose a choice between freedom and
economic justice before we know whether the immediate contraction of civil liberties and suspension of
elections will further economic productivity and redistribution. This is a predictive question to which social
scientists have their contributions to make. So Indira Gandhi’s conclusion that suspending civil rights and
press liberty will bring forth economic regeneration and growth was simply illogical.
Besides these drastic steps the Indira Gandhi government resorted to several related strictures which affected
the production and circulation of the print media. On the cut off of electricity service to the Delhi
newspapers soon after the declaration of Emergency, the White Paper on the Misuse of Mass Media
during the Emergency13 commented “Conscious that the implementation of censorship may take time, and
in the meanwhile the Delhi papers at least may come out with screaming headlines about the cataclysmic
events, the government resorted to blatant illegality. Power supply to newspapers (in Delhi) was cut off.
The first and most crucial round of battle for freedom of the Press and civil liberties was lost without a
struggle in the first week after the emergency. The absurdity and illegality of the Censor’s action was not
lost on the newspapers and their editors but barring a valiant few the others were unwilling to challenge it in
the court of law. This was unfortunate as contesting in the court of laws proved effective. In the Binod Rau
V/S M R Masani 14case the Bombay High Court on April, 1976 ruled among other things, “if there is a right
to praise either an individual or the government, there is equally a right to criticize the individual or the
government15.” The fact of the matter was that fear had struck the print media. Editors were more interested
in saving their jobs and printers did not want to risk forfeiture of their presses. This stance of the majority of
the print media was thus disapproving. Indira’s despotic stance against the print media was ably
implemented by Vidya Charan Shukla, handpicked by Sanjay Gandhi as the Information and Broadcasting
minister. The enactment of the Prevention of Publication of Objectionable Matters Act, 1976 proved to be
the death knell for Indian journalists. The Act empowered the government to prohibit publications on all
grounds pertaining to Article 19 (2). Thus the Act effectively banned all media publicity to antigovernment

11
Marcus F. Franda, "Curbing the Indian Press, Part III: Acquiescence and Defiance," American University Field Staff, South
Asia Series, February, 1977.
12
Henry Hart (ed.), Indira Gandhi's India: A Political System Reappraised, West view Press, 1976, p. 276.
13
White Paper on Misuse of Mass Media during the Internal Emergency New Delhi: Jain Book Agency, August, 1977.
14
Binod Rao Vs. Minocher Rustom Masani(1976)78BOMLR125
15
indiankanoon.org
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criticism or protests against government policies. It also empowered competent authorities to confiscate or
shut down printing presses or forfeit security deposit for printing “Objectionable matter” which of course
included anything and everything. Most of the Press became apprehensive and restrained and maintained this
stance throughout the Emergency period. The media was thus a fettered and dysfunctional institution during
Emergency.

CONCLUSION
At last it can be concluded that, The Freedom of the Press is nowhere mentioned in the Indian constitution.
The Right to Freedom of Speech and Expression is provided in Article 19 of the Indian Constitution. It is
believed that Freedom of Speech and Expression in Article 19 of the Indian constitution include freedom of
the press.
Freedom of expression enables one to express one’s own voices as well as those of others. But freedom of
the press must be subject to those restrictions which apply to the freedom of speech and expression. The
restrictions mentioned in Art. 19 are defamation, contempt of court, decency or morality, security of the
state, friendly relations with other states, incitement to an offence, public order and maintenance of the
sovereignty and integrity of India.
The status of freedom of the press is the same as that of an ordinary citizen. The press cannot claim any
immunity from taxation, is subject to the same laws regulating industrial relations, and press employees are
subject to the same laws regulating industrial employment.
The Indira government enacted laws curbing the right of journalists and limiting the scope of Press reports in
all possible ways. The subsequent government of Morarji Desai had a liberal outlook towards the Press and
the Indian Press regained its vigour and role. But governments and government heads cannot be entrusted
with media freedom or ethics. Both of them has to be nurtured and preserved by media themselves otherwise
there would be perpetual threat to its free functioning, the Press in India needs to ward off any attempt on its
Freedom of speech and expression by being alert and aware. This will not only uphold press freedom but
consequently maintain greater ethical standards as ethics and independence are interrelated. With greater
independence comes greater financial autonomy and with it is easier to retain high moral ground and face
Emergency-like onslaughts.

BIBLIOGRAPHY

 Indian Constitutional Law (Eighth Edition) by M P Jain

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 Basu, Dr Durga Das, Case Book on Indian Constitutional Law, 2nd ed. (2007), Kamal Law House,
Kolkata.
 Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency, Allahabad.
 Gaur, K.D., Textbook on The Indian Penal Code, 4th ed. (2010), Universal Law Publishing Co.,
Delhi.
 According to the White paper Misuse of Mass Media, issued by the Ministry of Information and
Broadcasting in August 1976.

 Austin, G. (1999). Working a Democratic Constitution: The Indian Experience. New Delhi: Oxford
University Press.

LIST OF CASES
 A.D.M Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207
 Indira Gandhi v. Raj Narain A.I.R. 1975 S.C. 2299.
 Binod Rao Vs. Minocher Rustom Masani(1976)78BOMLR125

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