The fundamental rights enshrined in the Constitution of India are an integral part of the constitutional basic structure. They are un-amendable. The most pre-eminent out of the freedoms enshrined in Article 19 of the Constitution is the Right of free speech and expression. It is pre-eminent because unlike other fundamental rights which can be restricted on account of certain reasonable restrictions, the right to free speech cannot be restricted on the ground of any undefined reasonable restriction. Article 19(2) provides specific conditions under which the right to free speech can be restricted. These restrictions must necessarily have nexus to sovereignty and integrity of India, the security of state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence.
No restriction can be imposed on the right to free speech either by the government or by the Election Commission which falls outside the purview of any of the above circumstances. Three possible violations or potential violations of the right to free speech have come to public notice.
The first is an order dated October 21, 2013 issued by the ministry of information and broadcasting . The order states that the Prime Minister is the leader of the country and not of a political party. When the Prime Minister speaks on national occasions, putting him in ‘artificial competition’ with anyone is not appropriate. This leads to denigration of the status of the Prime Minister and would be contrary to ethical journalism.
The order further states that the Cable Network rules forbid anything which is not in good taste, decency, slanderous or detrimental to social/public and moral life of the country. Any channel which shows the Prime Minister in competition would be liable for adverse action under the Uplinking and Downlinking Regulations as also a penal action under section 20 of the Cable Network (Regulation) Act. This is an unconstitutional censorship order prompted by the Modi-phobia.
The effect of this order is that on days the Prime Minister addresses the nation, no other speech should be telecast. The Chief Ministers of the states must be boycotted. Any comment of an opposition leader should be censored. If this principle is accepted it may even extend to a finance minister’s budget speech or a defence minister’s comment on the security of India. Censorship has no place in democracy. Censorship cannot be enforced directly or indirectly. Comment and criticism is a way of life. Even judgements of the highest court can be criticized. All individuals in public life must be subjected to scrutiny. We must be criticized when we go wrong. Criticism is a part of public accountability. Criticism which does not offend any of the Article 19(2) restrictions can never be restricted. No action under the Cable law can be taken for legitimate exercise of the free speech right. The restrictions under the Cable regulations must all be read in the context of Article 19(2). Otherwise such provisions of the Cable regulations may fall foul of Article 19(1)(a).
Airwaves are public property. They belong to the people of India and not to the minister of information and broadcasting. The user of the airwaves is only regulated by the government. The user can only be restricted on two grounds. Firstly, if airwaves are not available which is not presently the case. Secondly, if the user of the airwaves violates the constitutional guarantees for free speech and uses the speech against the sovereignty and integrity of India or any of the Article 19(2) restrictions. Disagreement with the Indian Prime Minister is not a restriction mentioned in Article 19(2).
The President of the United States each year delivers a ‘State of the Nation’ address. After the address is completed the party in opposition through its representative delivers it’s version of the ‘State of the Nation.’ This version is also globally telecast. Plurality of opinions is an inherent aspect of Indian democracy. If the Prime Minister speaks for the nation on a national day, so do the Chief Ministers and so does the Opposition.
Restricting Advertising Time
Earlier the Government on the advice of the TRAI has restricted the maximum number of advertisements that can be telecast in an hour. Ostensibly this hurts the business of a news channel. But effectively it hurts the right of free speech. In the Constituent Assembly, Late Shri Ram Nath Goenka had the vision to state that a time will come where the right to free speech will be restricted not through censorship but by pinching the business pockets of the media organizations. Commercial advertising supports free speech. If newspapers and televisions have no advertisements , they would be unable to exist. Advertisements supplement the right to free speech. Boredom of a viewer caused by lengthy advertisements is not a permissible restriction under Article 19(2). Both in the United States and India, the Courts have taken a consistent view that a business of a media organization can not be delinked from the exercise of right of free speech. If the size of a newspaper is restricted or the number of advertisements are restricted, it has a direct impact on its survival. Even if the circulation of the newspaper or viewership of the channel is adversely affected by pinching its revenues, it hurts free speech. Excessive taxation on media organizations which impinges on survival has been held to hurt free speech. Such restrictions in the name of sectoral regulations are clearly ultra virus of the Constitutional scheme.
Psephol ogy in India is still maturing. There are opinion polls and opinion polls. Some have acquired credibility and some can easily be ignored. Some are cases of even “participatory psephology.” Whatever may be the reliability or otherwise of these polls, can they be prohibited or banned? Polls like Gallup in the United States have acquired great credibility. Conducted on carefully chosen small samples, the polls normally prove correct. When the trend of opinion polls are adverse to the political parties, they rubbish them. They start demanding a ban. The loser demands a ban and the potential winner wants them to continue. A ban on such polls can not be considered based on who is demanding the ban. Clearly, polls are also a part of free speech. Restricting them is constitutionally neither permissible nor desirable. The Election Commission will be best advised to keep away from this controversy and allow the market place of democracy to accept or reject the findings of the opinion poll. If the polls can be legitimately banned in this country, the next step would be to ban political commentators from giving assessments favourable to some and adverse to some others. A potential loser in an election can not seek to alter the rules of Free Speech.
Arun Jaitley is leader of opposition (Rajya Sabha)