Constitution gives a pre-eminent position
to free speech
below is the text of Finance Minister Mr. Arun Jaitley’s speech as published
in Times of India Editorial page on January 24, 2015; the operative portions
relating to Constitutional freedoms under Article 19(1) (a) may be of particular
interest to you.
Days of Bans are over/TOI Edit page
gives a pre-eminent position to free speech, media must utilise this with care
issue of media freedom is today beyond any form of debate. Article 19(1)(a)
guarantees freedom of expression. In India unlike in some other
jurisdictions free speech in terms of freedom of Press, is not a separate
right and it is included in the larger ambit of freedom of expression. And those
who drafted the Constitution, created an exception.
exception was, that whereas in relation to other fundamental rights you had a
general exception of what is reasonable, could be restricted on the fundamental
right — the generalised restriction was not there in the context of free
speech. So, free speech was given a more elevated status, and you only define 6
or 7 circumstances on account of which there could be a restriction on free
speech. So, a general concept that there is a reasonable restriction against
free speech, is no longer a valid consideration.
preeminent position which has been given, has now to be utilised by media with
great circumspection. This is particularly because media now forms the eyes and
ears as far as citizens are concerned, it also has a very powerful impact.
second important aspect is, that whereas the Supreme Court laid down the law of
freedom of speech and freedom of Press — in context of other fundamental
rights, we have had our up and downs; the habeas corpus case was a low point as
far as personal life and liberty is concerned. But in relation to Article
19(1)(a), consistently with every judgment, the predominant thrust of the
Supreme Court has been to protect, preserve and to expand the right of freedom
of speech and freedom of Press. And therefore, we rarely have a view taken by
the judicial institution which curtails the right as far as free speech is
this right extends not merely to your right to report — but its horizons have
been widened: What should be the size of a newspaper? The court said that the
government can’t restrict it. What should be the volume of advertisements
vis-a-vis news in a newspaper? The court said the government can’t get into
it. What should be the extent of taxation on a newspaper? Now, any form of
taxation is normally upheld, unless it is confiscatory in character. But in case
of 19(1)(a), if the impact of unreasonable taxation is to compel a medium to
raise its cost and reduce its circulation, it impinges on 19(1)(a). So whereas
taxation generally would be judged on principles of Article 14 and 19(1)(g),
taxation judged in the context of 19(1)(a) is entirely different.
therefore, the distinction between content of a medium and business of the
medium has also been obliterated. Is the business of a newspaper or a news
channel entirely 19(1)(g)? The answer is “No”, to the extent that if you
pinch the pockets of a newspaper or a news channel, and therefore, infringe on
its free speech, you impact adversely on Article 19(1)(a). And therefore, the
business itself can’t be segregated as far as free speech is concerned. The
right to know, the right to information — these are all the rights which have
been read into Article 19(1)(a) with its horizons today expanded.
are the threats today? Traditionally, a newspaper or a channel could be banned.
The days of bans are over. You can censor a medium; in fact, part of the fear
that was created during Emergency was on account of the censorship of newspapers
itself. But today, technology has made censorship an impossibility. So assuming
there was Emergency imposed today under Article 352, the impact of censorship
would be nil. Because the satellite itself defies geographical boundaries —
emails don’t honour it, the fax machine doesn’t honour it.
therefore, what had to be secretly distributed as Emergency literature, would
today be freely available all over the country. And the more you ban, greater
would be the curiosity to access that material! So the threats really are no
longer such great external threats. You may have odd cases where the state
itself takes extra interest in setting up its own medium. But the threats that
are coming now — i would use the word “challenges” rather than
“threats” — are within, on account of the nature of the medium itself.
far as the sense of responsibility is concerned, it is difficult to define this.
Justice Ravindran mentioned that the government would try and discipline those
who are outside the scope of the self-regulatory mechanism. I find it extremely
difficult, because it may have its own pitfalls if the government got into the
business of starting to discipline media organisations. I would be more
comfortable if viewers or readers decided to disapprove if they find media way
off the mark. Rather than government step in and tell media what to report and
what not to report, i’d rather that viewers — just with the power of the
remote in their hands — decide to switch to something else.