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Press Freedom

Press Freedom

 

 

Press Freedom/            267                                                                  February 25, 2015

To:  All Members of the Society

 

Dear Sir,

Sub: Constitution gives a pre-eminent position to free speech

Reproduced 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.

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The Days of Bans are over/TOI Edit page

Constitution gives a pre-eminent position to free speech, media must utilise this with care

 Arun Jaitley/January 24

 The 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.

The 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.

This 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.

The 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 concerned.

Today, 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.

And 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.

 What 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.

And 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.

As 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.

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With kind regards,

 

V.Shankaran

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