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Saturday, November 27, 2021

Should Constitution be amended to make Freedom of Speech a direct Fundamental Right?

Perhaps India should carefully look at the 45 sacrosant words in the First Amendment of the US Constitution which protect the right to free speech, religion, press, assembly and petition

Written by Manish Tewari | New Delhi |
June 13, 2017 7:55:53 am
Are newspapers, broadcasting, radio and even social media an exercise in freedom of speech and expression or are business or trade subject to restrictions under Article 19 (6)?

The Constitution of India does not formally recognize the Freedom of the Press. Article 19 of the Constitution proclaims the “protection of certain rights regarding freedom of speech” etc. (1) All citizens shall have the right to freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practice any profession, or to carry on any occupation, trade or business.

The Constitution caveats the freedom of speech and expression with the following all encompassing restrictions that are prone to expansive, ambiguous and self-serving interpretations.

(2) “Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence,” it says.

There is a further joker in the pack and that lies in the form of Article 19 (6) that circumscribes the right among other things to carry on any trade or business. The question, therefore, that remains open to malicious construal is whether newspapers, broadcasting, radio and even social media are an exercise in freedom of speech and expression or are business or trade subject to restrictions under Article 19 (6).

This is precisely the insidious distinction that the CBI sought to draw when they put out a press release stating they had raided the office and business premises of the promoters of NDTV and not the Newsroom.

In other words, attempting to suggest that they were not interfering in the freedom of the press but merely trying to probe/ investigate/ regulate the backend or the business end of the commercial enterprise called NDTV. The relevant excerpt from the statement reads as follows; “It is clarified that searches have been carried out at the premises of the promoters and their offices based on search warrants issued by the Competent Court. CBI has not conducted any search of registered office of NDTV, media studio, newsroom or premises connected with media operations. CBI fully respects the freedom of press and is committed to the free functioning of news operations”.

As a lawyer and a former minister of Information & Broadcasting, I can only say with a reasonable degree of authority that not only is this the most vile hairs-plitting, it is also hilariously side-splitting. When you have to squeeze a media company you do not attack its news operations; instead, you go for the jugular by cutting off its revenue streams and put its business activity under a microscope, all the while sending it private messages that if your news coverage falls in line then the government will make the bad stuff go away. This is the Executive’s standard operating procedure when it lets its hounds loose on a media organization.

But the Supreme Court has held in a catena of decisions that the business end of a media enterprise is intrinsically and organically linked to freedom of speech and expression. As far back as 1961 regarding the Sakal newspaper, a Constitution bench of the court laid down the law that holds the field even today.

It reads as follows : “The only question that would then remain would be whether the impugned enactment directly impinges on the guarantee of freedom of speech and expression. It would directly impinge on this freedom either by placing restraint upon it or by placing restraint upon something, which is an essential part of that freedom. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression.

It therefore is evidently clear that any unwarranted attack on the commercial aspect of a media enterprise that is based upon “obtained complaints” and actuated by malice, paranoia or executive schizophrenia is a direct, unmitigated and sledgehammer assault on freedom of speech and expression.

Now contrast the Indian constitutional scheme with the American constitutional position. The First Amendment to the US Constitution protects the Freedom of the Press in its entirety. It reads as follows : “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.

Thus the estoppel is absolute. The US Congress can enact no law that abridges the freedom of the press in any manner much less let loose the hordes of Chengiz Khan –- the law enforcement and investigative authorities — to bludgeon a media house into subjugation. The US Congress passed this amendment along with eight others making up the Bill of Rights as far back as 15th December 1791.

These forty-five words encompass the most basic of American rights: Freedom of religion, freedom of speech, freedom of the press, the right of assembly, and the right of petition.

The First Amendment was not important in American life until well into the 20th century. The meaning was not clear even in 1791 but the intent was. Notwithstanding such unambiguous intent the words still are the subject of continuing interpretation and dispute even in the 21st century.

Therefore, to obviate any sinister sophistry about Article 19 (1) (a) in the Indian Constitution, which the CBI craftily came up with, perhaps the time has come for India to amend it’s Constitution and include the Freedom of Press as a direct right in the chapter on Fundamental Rights, rather than a derivative freedom of the Right to Speech and Expression . This would obviate any attempts by right-wing, left wing or centrist authoritarian figures to endanger this basic, natural and inviolable right.

Manish Tewari is a lawyer and former Union Minister of Information and Broadcasting during the UPA government. @manishtewari

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