Freedom of Speech and Expression
Article 19(1)(a) of The Constitution of India.
Anisha Gupta, Faculty of Law, Delhi University.
Date : 11/05/2015 - Location : New Delhi
Freedom of Speech and Expression under Article 19 (1) (a) of The Constitution of India.'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as India. Fundamental rights were deemed essential to protect the rights and liberties of the people against the encroachment of power delegated by them to their government. In Maneka Gandhi's case, Bhagwati justice, observed: "These fundamental rights represent the basic value cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and to create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual liberty in its various dimensions".
Right to Freedom:Personal liberty is the most important of all the Fundamental Rights. Articles 19 to 22 deal with different aspects of the basic rights. Taken together these 5 articles form a chapter on personal liberties which provides the backbone of the chapter on fundamental rights. These articles deal with the following different aspects of right to freedom:
1) Six fundamental freedoms (Article 19)
2) Protection in respect of conviction for offences (Article 20)
3) Protection of life and personal liberty (Article 21)
4) Right to education (Article 21-A)
5) Protection against arrest and detention in certain cases (Article 22)Article 19 is available only to the citizens of India but Article 20-22 is available to both i.e. citizens as well as foreigners. Six fundamental freedoms (Article 19): Article 19(1) of the constitution guarantees to the citizens of India the following six fundamental freedoms:
a) Freedom of speech and expression
b) Freedom of assembly
c) Freedom to form association
d) Freedom to movement
e) Freedom to reside and to settle
f) Deleted by 44th amendment, 1978
g) Freedom to profession, occupation, trade or businessThese six freedoms are not absolute as absolute individual rights cannot be guaranteed by nay modern state. If people were given complete and absolute liberty without any social control the result would be ruin. Liberty has got to be limited in order to be effectively possessed. Pantanjali shastri, J, in A.K. Gopalan v. State of Madras, observed "Man as rational being desires to do many things, but in a civil society his desired have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals". The restrictions on these freedoms are provided in clause 2 to 6 of Article 19 of the constitution. The restrictions which may be imposed under any of the clauses to be constitutionally valid must be:
For the purposes mentioned in clauses 2 to 6 of Article 19
Freedom of Speech And Expression- 19(1) (a) And 19(2)Article 19(1) (a) secures to every citizen the freedom of speech and expression and should be read with clause(2) which empowers the state to put reasonable restrictions on the following grounds:
a) Security of the state
b) Friendly relationship with foreign states
c) Public order
d) Decency and morality
e) Contempt of court
g) Indictment to an offence
h) Integrity and sovereignty of IndiaThe freedom of speech and expression means the right to express ones convictions and opinions freely by the word of mouth, writing, printing, pictures, electronic media or nay other mode addressed to the eye or the ear. It also includes the right to publish views of other people (freedom of press). Freedom of speech and expression has 4 broad special purposes to serve:
1) It helps an individual to attain self fulfilment.
2) It assists in discovery of truth.
3) It strengthens the capacity of an individual in participating in decision making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
Freedom of Press:The liberty of the press consists in printing without any licence subject to the consequences of law. Thus the liberty of press means liberty to print and publish what one pleases, without previous permission. This freedom is not only confined to newspapers and periodicals, it also includes pamphlets, circulars and every sort of publication giving information and opinion. The press has the same rights as those of an individual.
Case Laws:Bennett Coleman & Co. v. Union of India; (AIR 1973 SC 106) Facts and Issue: In this case the import policy for newsprint for 1972-73 read with newspaper control order, 1962 issued under section 3 of the essential commodities act, 1955 was questioned, which imposed various restrictions, viz.
1) Bar on starting newspapers or editions by common ownership units, as also interchangibility within common ownership units,
2) It fixed the maximum number of pages i.e., 10 pages which a newspaper could publish with an allowance of 20% increase only to newspaper below 10 pages
The validity of the newsprint control order was challenged as violative of fundamental rights guaranteed under Article 19(1)(a)and 14 of the constitution.
Contention of the government:
1) The government defended the measures on the ground that it would help small newspapers to grow and to prevent a monopolistic combination of big newspapers
2) Government also sought to justify the reduction in the page level on the ground that the big dailies devote high percentage of space to advertisements and therefore, the cut in pages will not be felt by them if they adjusted their advertisement space.Decision:
1) The court held that the newsprint policy was not reasonable restrictions within the ambit of Article 19(2) and violative of Article 19(1) (a). The newsprint policy takes away the petitioners right of freedom of speech and expression. The newspaper are not allowed there right of circulation. They are not allowed the right of pages growth. The common ownership units of newspapers cannot bring out the newspaper or new editions. The newspaper operating above 10 pages level and newspapers operating below 10 pages have been treated equally for assessing the needs and requirements of newspapers which are not their equals. Once the quota is fixed and a direction to use the quota is in accordance with the newsprint policy if made applicable, the big newspaper will be prevented from increasing the page limit.
2) The court further held that fixation of page limit will not only deprive the petitioners of their economic viability but also restricts the freedom of expression by compulsive reduction of page level entailing reduction of circulation and area of coverage for news and views. If as a result of reduction in pages, the newspaper will have to depend on advertisement as their main source of income, they will be denied dissemination of news and views. That will also deprive them of freedom of speech and expression. On the other hand, if as a result of restriction on page limit, the newspapers will have to sacrifice advertisements and thus weaken the link of financial strength, the organisation will crumble. The loss of advertisement may not only entail the closing down but also effect the circulation and thereby infringe on freedom of speech and expression.
3) The court held that the government can make a fair and equitable allotment of available newsprint to newspapers but once the allotments are made, newspapers must be left free to determine how they will adjust their newsprints. They must be left free to determine their pages, circulation and news edition within the quota allotted to them.
4) The court held that the test in determining the question whether a legislation or executive action infringes the fundamental right is to examine its "effect" and not its object or subject matter. If the direct effect of the impugned law is to abridge a fundamental right , its object or subject matter will be irrelevant.In the instant case the court held that although the subject-matter of the newsprint policy was different, its direct effect was newspaper control and hence violative of article 19(1) (a). In Romesh Thappar v. State Of Madras (AIR 1950 SC 124), while quoting U.S. SUPREME COURTS view in Lovell v. City Of Griffin (1937) 303 U.S. 404, the apex court held that the freedom of speech and expression, guaranteed under Article 19(1)(a), means right to speak and to express ones opinions by word of mouth, writing, printing, pictures or in any other manner. It is to express ones convictions and opinions or ideas freely, through any communicational medium or visible representation, such as gestures, signs and the like. This freedom is essential for the proper functioning of the democratic process. Brij Bhushan v. State of Delhi ;( AIR 1950 SC 129): FACTS AND ISSUE: The question of validity of censorship came up for consideration in this case. The chief commissioner of Delhi, in pursuance of section 7 of the east Punjab safety act, 1949, issued an order against the printer, publisher, editor of an English weekly of Delhi, called the ORGANISER, directing them to submit for scrutiny in duplicate before publication till further orders, all communal matters and news and views, about Pakistan including photographs and cartoons other than dose derived from official sources or supplied by news agencies. HELD: The court struck down the order observing: "The imposition of pre-censorship of a journal is a restriction on the liberty of the press which is an essential part of THE FREEDOM OF SPEECH AND EXPRESSION declared by article 19(1)(a)". In Sakal Paper v. Union Of India; (AIR 1962 SC 305) the court referred to the ruling in Dwarkadas Shrinivas v. The Sholapur And Weaving Co. Ltd(1954 AIR 119,SCR 674): The daily newspaper(price and control) order 1960, which fixed a minimum price and number of pages which a newspaper was entitled to publish, was held unconstitutional, as it infringed the liberty of the press. An increase in price without an increase in number of pages would reduce circulation. On the other hand any decrease in number of pages, would reduce column and space for news. The order therefore acted as a "double edged knife". The state justified the law as a reasonable restriction on the business activity of the newspapers in the "interest of general public". The court rejected this contention, and said that freedom of speech and expression can only be restricted on the grounds mentioned in Article 19(2). It cannot, like the freedom to carry on business, be curtailed in the interest of general public. The freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers. Freedom of press is both quantitative and qualitative. Freedom lies both in circulation and in its content (news and views). DISSENTING OPINION: Drawing inspiration from American first amendment, Mathew j,. was of the opinion that there might be an abridgement of speech, but not an abridgment of the freedom of speech, and observed that if the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involved a regulation of the press which would amount to abridgement of freedom of speech. However, the Majority pointed out that the American first amendment contained no exception like Article 19(1) and (2) of Indian constitution, and the American decisions established that a governmental regulation was justified in America as an important an disentail government interest which was unrelated to the suppression of free expression. The Supreme Court in India has established that the freedom of press is to speak and express and it cannot be taken away in the manner the impugned import policy had done. In Express Newspapers v. Union Of India (AIR 1958 SC 578): The validity of the working journalists act, 1955 was challenged. The act was enacted to regulate conditions of services of persons employed in newspaper industry e.g., hours of work, leave, fixation of wages, etc. It was contended that the at would adversely affect financial position of the newspaper, and would curtail circulation, and hence the act was violative of Article 19(1) (a). The court held that the act was valid. It was said that the press is not immune from the laws of general application or ordinary forms of taxation, or laws of industrial relations. The act was passed to improve the service condition of workmen in the newspaper industry, and therefore, impose reasonable restrictions on the rights guaranteed by Article 19(1) (a). Again in Indian Express News Paper v. Union Of India (1985 1 SCC 647) on the same line of footing as above imposition of import duty and leaving of auxiliary duty of the news print was held valid as long as tax is within reasonable limits. In State Trading Corporation Of India Ltd. v. The Commercial Tax Officer, Vishakapatnam and Tata Engineering & Locomotive Co. v. State Of Bihar expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word "citizen" in Part 11 and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In the State Trading Corporation case the Court was not invited to "tear the corporate veil". In the Tata Engineering & Locomotive Co. case Court said that a company wag a distinct and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities. In Chiranjit Lal Choudhary v. The Union Of India & Ors. Mukherjee J. Expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.
Freedom of Speech and Expression and Electronic Media (Ads, Films, etc.)Advertisement is undoubtedly a form of speech. But every form of ad is not a form of speech and expression of ideas e.g. social, political, literary, etc. An ad of a "commercial nature" is not protected under Article 19(1)(a). Such ad has an element of trade and commerce. Professionals like doctors, lawyers, C.A, are legally forbidden to advertise their services. In TATA PRESS V. MTNL (1995) 5 SCC 139, the supreme court declared that the right to "commercial speech" or advertisement is part of the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a). A private agency like Tata press is, therefore entitled to bring out yellow pages comprising advertisements, the annual buyers guide for Bombay. The larger implication of the right to advertisement being elevated to the status of a fundamental right is that from now on it can be restricted only on the grounds specified in Article 19(2). MTNL cannot come in the way of Tata press yellow pages in "public interest" as no such ground in mentioned in Article 19(2). Commercial speech now enjoys as much protection as any other speech. Kuldip Singh, j. however, made it clear that the commercial advertisements which are deceptive, unfair, misleading and untruthful could be regulated by the government. The court referred to the judgement in Hamdard Dawakhana v. Union Of India (AIR 1960 SC 554) In which it was held that an obnoxious advertisement (advertisements of prohibited drugs having magic qualities for curing diseases) would not come within the scope of Article 19(1)(a). The court said advertisement as a "commercial speech" has two facts. Advertisement which is no more than a commercial transaction is nonetheless dissemination of information regarding the product- advertised. Public at large is benefited by the information made available to them through advertisement. In a democratic economy, free flow of commercial information is indispensable. There cant be honest and economical marketing by the public at large without being educated by the information disseminated through ads. Examined from another angle, the court said that the public at large has a "right to receive" the "commercial speech". Article 19(1)(a) not only guaranteed freedom of speech and expression but also protects the right of an individual to listen, read and receive the said speech.
Right of the Convict to Express Himself Whether Covered by Article 19(1)(a):The media plays an important role in a democratic society. It acts as the fourth institute outside the Government. Sting operations are methods of uncovering information. Although, the Indian Constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1) (a). Various Constitutions have guaranteed free press or media as a fundamental right. Freedom of press is a special right under art. 19(1) (a) of the Constitution of India, 1950 but it has certain restrictions. The democratic credentials are judged by the extent of freedom the media enjoys in a particular state. Further the media has a right to impart the information to the public. Freedom of speech includes freedom to communicate, advertise, publish or propagate ideas and the dissemination of information. Furthermore Art. 19(1) also incorporates within itself right to receive information about any event, happening or incident etc. "The heart of journalism has to be public interest" and Sting operations, serve public interest. In State v Charita (AIR 1999 SC 1379), the Supreme Court held that the press does not have any "unfettered "right to interview an under trail prisoner in a jail. The court while granting permission will have to weigh the competing interest between the right of the press and the right of the authorities prohibiting such interviews in the interest of administration of justice. The permission granted by court would be subject to the relevant rules/regulations contained in the jail manual. Earlier, in M. Hasan v Govt. of A.P. (AIR 1998A.P. 35), the Andhra Pradesh high court held that refusal to journalist and videographers seeking interview with condemned prisoners amounted to deprivation of citizens fundamental right to freedom of speech and expression under Article 19(1)(a). A condemned prisoner like a free citizen has a right to give his ideas and was entitled to be interviewed or televised. The apprehension of jail authorities that such reporting or videography is not reasonable and in the interest of safety and security was unfounded. In S.P. Gupta v. Union Of India(1982) 2 SCR 365, the court said "No democratic Government can survive without accountability and the basic postulate of accountability is that people should have the information about the working of the Government." In Prabha Dutt v. Union Of India (1982) 1 SCC 1. The Supreme Court upheld the right claimed by the press to interview prisoners that the right claimed by the Press was not the right to express any particular view or opinion but right to means of information through the medium of interview of the prisoners. The learned Chief Justice said:
"Before considering the merits of the application, we would like to observe that the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution, which includes the freedom of the press, is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information. The press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India, the security of the State, public order, decency and morality. But in the instant case, the right claimed by the petitioner is not the right to express any particular view or opinion but the right to means of information through the medium of an interview of the two prisoners who are sentenced to death. No such right can be claimed by the press unless in the first instance, the person sought to be interviewed is willing to be interviewed. The existence of a free press does not imply or spell out any legal obligation on the citizens to supply there is under section 161 (2) of the Criminal Procedure Code. No data has been made available to us on the basis of which it would be possible for us to say that the two prisoners are ready and willing to be interviewed".The court stated that "With great power comes great responsibility, therefore the freedom under Article 19(1) (a) is correlative with the duty not to violate any law. Every institution is liable to be abused, and every liberty, if left unbridled, may lead to disorder and anarchy.. In Time v. Hill the U.S. Supreme Court said: "The constitutional guarantee of freedom of speech to press is not for the benefit of the press so much as for the benefit of all the people. The same principle was followed by Mathew, J. in Bennett Coleman and Co. v. Union of India. Article 19(2) - An Exception to Article 19(1): It is however pertinent to mention that, freedom of speech and expression of press is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public. "The right to privacy by itself has not been identified under the Constitution. As a concept it may be too wide and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case."Today the sting operations is taking place for commercial gains therefore the Supreme Court should take observations about it. Problem with the media is that it only campaigns for cases which appeal to its market and its imagination, which may result in its good reputation in front of the society. To avoid falling into that trap, the sting operations need a code of conduct. Laws too, should be strengthened in this regard. Sting operations are completely justified if they are carried out with the protocol that has been talked about. In R. Rajagopal v. State Of Tamil Nadu(1994) 6 SCC 632, the editors of the Tamil magazine "NAKKHEERAN" published from madras moved to the supreme court and asked for a writ restraining government officials from interfering with their rights to publish the autobiography of "auto Shankar" who had been convicted for several murders and awarded death sentence. Auto Shankar had written his autobiography in jail which depicted close relationship between the prisoner and several IAS, IPS, and other officials, some of whom were partners in several crimes. The announcement by the magazine that very soon a sensational life history of auto Shankar would be published created panic amongst several police officials that they might be exposed. The I.G. wrote the publisher that the autobiography was false and should not be published. The Supreme Court held that the petitioners have a right to publish THE AUTO BIOGRAPHY OF AUTO SHANKAR in so far it is based upon public records, even without his consent and authorisation. But if they go beyond that and publish his life history they may be invading his right of privacy. Once a matter becomes a matter of public record, the "right to privacy" no longer subsists and it becomes a legitimate subject for comment by press and media. It's enough for the press to prove that he acted for a reasonable verification of the facts; its not necessary for the press to prove that what was published was true. Sheela Barse v. Union Of India(1987) 4 SCC 373; FACTS AND ISSUE: Sheela Barse, a free lance journalist, sought permission to interview the female prisoners in the Maharashtra State Jails. The permission was granted by the Inspector-General of Prisons. As, however, the journalist started tape-recording her interviews with the prisoners, the permission to interview was withdrawn. Feeling aggrieved by the cancellation of the permission, the journalist moved this Court in its writ jurisdiction on the ground that a citizen has a right to know under Articles 19(1) (a) and 21 of the Constitution, if the Government is administering the jails in accordance with law, and that the Press has a special responsibility to collect information on public issues to educate the people. Contention of the defendant: The permission was cancelled, as stated by the Inspector-General of Prisons in his counter affidavit to the Writ Petition, on the ground inter alia that the permission had been granted to the petitioner in contravention of the Maharashtra Prison Manual and the rules made there under, which govern the interviews with the prisoners; the petitioner, an amateur free lance journalist not employed by any responsible newspaper, was not covered by the said rules. The respondent also contended that the Articles of the Constitution referred to by the petitioner were not attracted to the case. DECISION: The term 'life' in Article 21 covers the living conditions of the prisoners, prevailing in the jails. The prisoners are also entitled to the benefit of the guarantees provided in the Article subject to reasonable restrictions. The petitioner is not entitled to uncontrolled interviews. The factual information collected as a result of the interviews should usually be cross-checked with the authorities, so that a wrong picture of a situation may not be published. Disclosure of correct information is necessary, but there is to be no dissemination of wrong information. Persons, who get permission to interview, have to abide by reasonable restrictions. As for tape-recording the interviews, there may be cases where such tape-recording is necessary, but tape-recording is to be subject to special permission of the appropriate authority. The interviews cannot be forced upon anyone and willingness of the prisoners to be interviewed is always to be insisted upon. There may also be certain other cases, where, for good reasons, permission to interview the prisoners may be withheld, which situations can be considered as and when they arise. The petitioner can make a fresh application for permission to interview the prisoners, which is to be dealt with in accordance with the guidelines laid down. In State v. Charulata Joshi,(1999) 4 SCC 65: the Supreme Court held that "the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution which includes the freedom of the press is not an absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness".
Pre-Censorship and Exhibition of Films:It is justified under Article 19(2) on the grounds that films have to be treated separately from other forms of art and expression because a motion picture can stir up emotions more deeply. Hence, classifications of films into "A" & "U" categories was held to be valid in Ka Abbas v. Union Of India( AIR 1971 SC 481) Life Insurance Corporation Of India v. Mannubhai D. Shah (1992) 3 SCC 637: The Supreme Court examined the scope and extent of the freedom of speech and expression. The respondent published a study paper entitled "found on the policy holders" which depicted the discriminatory practice adopted by LIC, which adversely affected the interest of a large number of policy holders. A member of LIC published a counter in the magazine published by LIC but denied to publish the rejoinder of the respondent. The Supreme Court held that LIC is state within the meaning of Article 12 and therefore it must function in the best interest of the community. The respondents fundamental right of speech and expression entitles him to insist that his views on the subject should reach those who read the magazine. The court explaining the scope of freedom said "the words freedom of speech and expression must be broadly constructed to include the freedom to circulate ones views by words of mouth or writing or through audiovisual media". In the other case regarding refusal to telecast the documentary film on the Bhopal gas disaster titled "beyond genocide", the court held that the respondent has a right to convey his perception of the gas disaster. In fact the community was keen to know and what actually happened, what is happening. Which remedial measures the state authorities are taking and what are the likely consequences of gas leak. In Odyssey Communication Pvt Ltd v. Lokvidayan Sanghtana ( 1988) 1 SCC 131: a social organisation of Pune, filled a public interest litigation under article 226 to restrain the union of India, ministry of information and broadcasting and state of Maharashtra from telecasting the serial "HONI-ANHONI" on the grounds that its likely to spread false and blind beliefs and superstition amongst the members of public. It was however held that, the rights of a citizen to exhibit a film on Doordarshan, on the terms and conditions imposed by Doordarshan is a fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) which can be curtailed only on the grounds mentioned in Article 19(2). The respondent failed to show that the exhibition of the serial was prime facie prejudicial to the community. In Bobby Art International v. Ompal Singh Hoon (1996) 4 SCC 1: popularly known as "bandit queen case" the respondent filled a writ petition in the court for quashing the certificate of exhibition given to the film "bandit queen" and restraining its exhibition in India. The film is the story of Phoolan Devi exposed to from an early age to the brutality and lust of man. The film was granted A certificate by the censor board and the appellate tribunal. The high court held that the film was obscene and quashed the order of the tribunal, thus restraining the exhibition of the film altogether. The Supreme Court held that the certificate issued to the film upon conditions imposed by the tribunal is valid and is, therefore, resorted. Held that the film must be judged in its entirety and from the point of view of its over-all impact. The story of a film is a serious and a sad story of a village born female child becoming a dreaded dacoit. The scene where she is humiliated stripped and paraded naked does not arouse the cinemagoers lust but to arouse in him sympathy for the victim and disgust for the perpetrators. In fact, that scene is central to the story. A film that carries the message that the social evil is evil cannot be impermissible on the ground that it depicts the social evil.
Right to Information:The supreme court has observed that the right to information is a part of right to speech and expression which is a fundamental right under Article 19(1)(a) of the constitution. According to the Supreme Court, right to speech and expression cannot be exercised without right to information. In recognition of the need to promote transparency in public affairs and to curb corruption, the parliament enacted the right to information act in 2005. It is a path breaking legislation to empower the people specially the weaker section of the population. While right to information is guaranteed by the constitution, the act sets out the practical regime for the citizens to secure access to information on all matters of governance. The act is thus a landmark initiative to mark the public administration accountable and the decision-making process participatory. This law is very comprehensive, covers almost all levels of governance and has widest possible reach. It is applicable to not only the union, state and local governments and the public authorities but also to the recipients of government grants. Access to information under this act is extensive with the minimum exemptions to safeguard national interests. Even the exempted organisations are subjected to the citizens right to know when the matter relates to corruption or human right violation. The citizen does not have to establish his locus standi to seek information. It overrides anything contrary to any other act including the 'official secrets act'.
Electronic Media:In Secretary, Ministry Of I & B v. Cricket Association, Bengal (AIR 1995 SC 1236): FACTS AND ISSUE: The cricket association of Bengal (CAB) and board of cricket control of India (BCCI) have sought a license to telecast their matches through a foreign agency and through telecasting equipments brought in by such foreign agency. In case of HERO CUP matches organised by CAB, they wanted unlinking facility to INTELSAT through the government agency VSNL also. They wanted the permission to import the telecasting equipments along with the personnel to operate it by moving it to the places all over the country wherever matches to be played. They claimed this licence (or permission) as a matter of right said to be flowing from Article 19(1) (a). In late 1993, challenging a decision of CAB to award exclusive rights to an international broadcasting company (TWI) to cover hero cup tournament, the ministry of I & B directed VSNL (the governments international telecom monopoly) to deny up linking facilities. The CAB petitioned the high court, which permitted the telecast. In turn the ministry appealed against the decision in the Supreme Court contending that it had monopoly over it under the telegraph act, 1885. The word telegraph included telecast. The Supreme Court turned aside the appeal and delivered a landmark judgement DECISION: The supreme court made in this case an important innovation and widened the scope and extent of right to freedom of speech and expression and held that the government has no monopoly on electronic media and that a citizen under Article 19(1)(a) has a right to telecast and broadcast to the viewers, listeners through electronic media, television or radio any important event. The ratio of the Supreme Courts judgement is as follows:
1) The court allowed the private broadcasters the right to airwaves. The court ruled that airwaves are public property and as such they must be regulated by an independent, autonomous public authority representative of all sections and interest in society
2) The autonomous authority or body is to decide who really should have the right to airwaves. It should rescue the electronic media from the government monopoly and bureaucratic control. The court directed the government to set up such autonomous body immediately.
3) The court expanded the scope of the fundamental right to speech and expression [Article 19(1) (a)]. The court observed that a citizen has a fundamental right to use the best means of imparting and receiving information and as such have access to telecasting for the purpose. The government has no exclusive right to use broadcast media or to deny the use by others.
4) The court declared that the freedom of speech and expression applied not just to print media but aloes to electronic media. The airwaves are a public resource and must, therefore, be regulated in the public interest.
5) The court ruled that the freedom of speech and expression includes the right to educate, inform and entertain. According to the court, sport is an expression of self. The right to telecast sporting event also includes the right to educate and inform present and prospective sportsmen interested in a particular sport and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the "free speech" element is absent from his right.
6) Freedom of speech and expression includes right to communicate effectively. A citizen under Article 19(1)(a) has a right to telecast/broadcast to the viewers through electronic media any important event. The government can impose restrictions on such a right only on grounds specified in Article 19(2). State monopoly on electronic media is not mentioned in Article 19(2)The government of India has so far curbed private, foreign and Indian companies from broadcasting sports, news, etc by claiming that the telegraph act gives it exclusive power to uplink- telecast direct from the Indian soil. By this judgement the apex court has paved the way for a revamp of the countrys archaic broadcasting policy. The judgement allowed private broadcasters to buy rights from the sports organisations, and to present live news and current affairs.
Print Media:In Pandit M.s.m Sharma v. Krishna Sinha,( AIR 1956 SC 395), proceedings for the breach of privilege had been started against an editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar legislative assembly which the speaker had ordered to be expunged from the proceedings of the Assembly. The editor in a writ petition under Article 32 contended that the House of Commons had no privilege to prohibit either the publication of the publicly seen and heard proceedings that took place in the House or of that part of the proceedings which had been directed to be expunged. The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who delivered the majority judgement, observed that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings. Now Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of Parliament or a State Legislature unless the reporting is proved to have been made with malice. This provision does not apply to the reporting of proceedings of secret sittings of the Houses.
Freedom of Speech and Expression and Furling of The National Flag:In Union Of India v. Naveen Jindal (2004) 2 SCC 410, the supreme court made certain important observations in respect of the flying of the national flag:
1) Right to fly the national flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1) (a) being an expression and manifestation of his allegiance and feelings and sentiment of pride for the nation. However, such a right is subject to reasonable restrictions under Article 19(2).
2) The emblems and names(prevention of improper use) act, 1950 and the prevention of insults to national honour act, 1971 regulate the use of the national flag
3) Flag code although is not a law within the meaning of Article 13(3) of the constitution of India, for the purpose of Article 19(2) it would not restrictively regulate the free exercise of the right of the flying of the national flag. However, the flag code to the extent it provides for preserving respect and dignity of the national flag, the same deserves to be followed.
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