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The golden mean

The jury is still out on where the median on freedom of thought and expression lies

Written by Manish Tewari | Published: April 28, 2012 12:32:07 am

The jury is still out on where the median on freedom of thought and expression lies

A five-judge bench of the Supreme Court is currently hearing a batch of matters pertaining to,inter-alia,the formulation of norms and guidelines for reporting sub-judice matters,coverage of news by the electronic media,minimising presentation of sexual abuse and violence on TV channels,contempt proceedings against journalists for publishing confessional statements of an accused made to the police and to making the police liable for tarnishing the reputation of an accused by releasing details of a matter under investigation.

Concurrently,a division bench of the Lucknow bench of the Allahabad high court has passed an order restricting reportage on the movement of troops. The Standing Committee on Law and Justice and the Lok Sabha recently saw an animated debate on the issues of oral observations made by the judiciary during court proceedings and obiter dicta. It culminated in the incorporation of an axiomatic clause in the Judicial Accountability Bill that bars judges

from making “unwarranted” comments against constitutional and statutory functionaries. It further ordains that judgments should speak for themselves.

Reports have appeared that a state government is planning to launch a TV channel and a newspaper to disseminate “correct” information to people. The social media has empowered almost everyone who chooses to become a part of it to instantly turn broadcaster,throwing both restraint and responsibility to the winds. The government is attempting to balance competing interests in trying to find an acceptable middle ground. To top it all is the ever increasing anxiety,if not unease,among a large swathe of the population about the sensational,if not hysterical,nature of media discourse. An intense and undulating debate is unfolding across institutions and societal paradigms to define both the core and the frontiers of the freedom of speech and expression. The jury is still out on where the golden median lies in apparently conflicting narratives.

Article 19(1)(a) of the Constitution of India guarantees to all citizens the right to freedom of speech and expression. However 19(2) caveats the right by giving the state powers to make laws to impose reasonable restrictions on these liberties. Notwithstanding these constitutional caveats in Indian legislatures,judicial authorities and people’s movements across democracies have consistently struggled to not allow any substantive erosion of the freedom of speech and expression that forms the core of any liberal,plural and democratic ethos.

The Supreme Court in Re: Kushboo’s matter (2010) 5 SCC 600 held,“The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective right of the citizenry. While an informed citizenry is a precondition for meaningful governance in the political sense we must also promote a culture of open dialogue when it comes to societal attitudes”.

Though this observation was made in an entirely different context,the import is indeed prophetic. It should become the trigger to reflect on the attitude that we have as a society towards the institutions of national security,be it the armed forces or intelligence structures. For over six decades now these organisations have been treated as sacrosanct and insulated from public scrutiny. An ethos has been perpetuated that seeks to view with scepticism any attempt to transparently examine issues and problems that make the rounds in Chinese whispers in the rarefied echelons of power.

While it should not be argued that confidentiality and discretion are not intrinsic to the defence of the realm,the furore over the leak of a recent letter purportedly written by the army chief to the prime minister was,with due respect,a bit of a stretch. Similarly,there was a front page story by The Indian Express with regard to troop movements. While everyone has the right to disagree with the contents of a story,what we need to determine is whether,in a democratic nation,a newspaper does not have the right to make an editorial judgement as to what should and should not be disseminated in the public domain. Anybody who is aggrieved by the content has recourse to legal remedies,which brings to the fore the need to tighten libel laws in the country.

The rash of recent controversies with regard to alleged shortages of equipment,material and personnel in the armed forces are partly due to the fact that substantive issues of defence preparedness have never ever been seriously discussed by Parliament during times of peace. Even after five decades,the Henderson Brooks report on the Sino-Indian border war has not been put in the public domain. Even after a decade,there is a lack of clarity about the implementation of the recommendations of the Kargil Review Committee. One can only hope that the Naresh Chandra Committee report would be placed on the table of the House,so that the issues that it flags can at least be discussed in a transparent manner.

India has a professional defence force that is paid for by the taxpayers. If there are problems or portents that could manifest even in future because of a perceived strain in civil-military relations,they are better out in the open rather than being consigned to the closet.

Institutionally,Parliament must rethink its reluctance to engage with doctrinal strategic and military issues. The constitutional courts also need to assess and weigh the pros and cons as to whether sustained and comprehensive journalistic engagement with issues of national security would perhaps be a more enlightened method to discern areas of concern and address them holistically.

The writer is a lawyer and an MP. Views are personal

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