The Supreme Court verdict on Section 66A of the Information Technology Act not only reaffirmed the paramount importance of freedom of speech and expression in a democratic constitution, but also emphasised how a parallel discussion on the freedom of the press has been at the core of evolution and expansion of this right.
The bench of Justices J Chelameswar and Rohinton F Nariman discussed and borrowed from a body of judgments by the Supreme Court as well as by American courts to underscore the indispensability of the free speech and many of these pronouncements related to the freedom of the press.
The bench started with the 1950 judgment by the Supreme Court in the case of Romesh Thapar vs state of Madras, where the court stated that freedom of speech lay at the foundation of all democratic organisations. Thapar had moved the court after his magazine Cross Roads was banned by the Madras state government for reportedly publishing views critical or defamatory of the Congress. This case was heard with Brij Bhushan vs State of Delhi that related to a ban on another magazine, Organiser. The full court ruled that the imposition of pre-censorship on a journal is a restriction on the liberty of the press, which is an essential part of the right to freedom of speech and expression under Article 19 (1)(a). It said the freedom of speech and expression is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guarded by the courts. The verdict added that free political discussion is essential for the proper functioning of a democratic government.
The second judgment that the bench drew from was Sakal Papers (P) Ltd vs Union of India, 1962. The government had sought to regulate the number of pages a newspaper could contain by making it a direct function of newspaper’s price. A constitution bench held that the freedom of press under Article 19(1)(a) covered not only matter but also volume. The court stressed the importance of the freedom of speech “under a democratic Constitution which envisages changes in the composition of legislatures and governments.”, and emphasised that any regulation that would necessarily “undermine… power to influence public opinion” was “capable of being used against democracy as well.”
The bench cited the 1973 judgment on the “Bennett Coleman case” to assert that “freedom of speech and of the press is the Ark of the Covenant of Democracy” because public criticism is essential to the working of its institutions. The petition had challenged the newsprint policy but a technical plea was raised that only individuals, and not a company, could claim violation of its fundamental rights. The court, however, held that the individual rights of freedom of speech and expression of editors, directors and shareholders are all expressed through their newspapers, through which they speak. The press has the right of free propagation and free circulation without any previous restraint on publication. If a law were to single out the press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent newspapers from being started and compel the press to government aid, this would violate Article 19(1)(a) and would fall outside the protection afforded by Article 19(2), it held.
To buttress the impact and content of freedom of speech, the bench referred to the 1985 judgment of the Supreme Court in a case relating to Indian Express Newspapers (Bombay) Ltd. The court had in this case ruled that freedom of press was the heart of social and political intercourse and its purpose was to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. The court said protection of this right was essential since newspapers, being purveyors of news and views and having a bearing on public administration, very often carry material which would not be palatable to governments and other authorities.
The US parallels
Examining the validity of Section 66A , the bench then referred to the US First Amendment, which in absolute terms said that Congress shall make no law which abridges the freedom of speech and of the press.
It cited the case of American Communications Association vs Douds. The judge said: “Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error. We could justify any censorship only when the censors are better.”
In Winters vs People of State of New York, a law sought to penalise magazines over obscene prints and articles but the US Supreme Court struck it down over the impossibility of defining precisely what would amount to obscene, lewd, lascivious, filthy, indecent or disgusting.
In Burstyn vs Wilson, the US Supreme Court quashed the law by which sacrilegious writings and utterances were outlawed.
The bench also cited the 1997 case of Reno, Attorney General of the United States, et al vs American Civil Liberties Union. In this case, two provisions of the Communications Decency Act of 1996, which sought to protect minors from harmful material on the Internet, were adjudged unconstitutional. The US Supreme Court held that the impugned statute lacked the precision which was obligated by the first amendment while regulating the content of speech. “In order to deny minors access to potentially harmful speech, the impugned Act effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,” it had ruled.
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