Free speech interrupted

“It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the ‘freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases,” Supreme Court in S Khushboo vs Kanniammal (2010)

Free press is under duress in India. Journalist bodies have of late been inundated with cases calling for solidarity and support against the use of state agencies to target individual reporters/editors. The spectre of raids, arrests and FIRs, often making bail difficult, has become rather common. A 2022 report by Rights and Risk Analysis Group (RRAG) calculates a total of 194 journalists, including seven women journalists, who have been targeted by state and non-state actors across the country.

India in 2023 ranked 161 in a list of 180 countries in the World Press Freedom Index, the lowest since 2002 when Reporters Without Borders, a global advocacy group, first published it with a list of 139 countries.

Even if we were to disregard these reports, there can be no denying the fact that a “chilling effect” on the exercise of freedom of speech and expression under Article 19(1)(a) is being felt by independent journalists. This is not an argument for absoluteness of the freedom of speech. Indeed, professional journalists are bound by ‘reasonable restrictions’ under Article 19(2) and enjoy no special privileges or protection as a member of the press.

Unlike the US First Amendment which specifically lists freedom of speech along with the press, Article 19(1)(a) speaks of freedom of speech and expression without any reference to “the press”. In the newspapers at least, publication of all news and views is subject to internal checks and balances. There is remedy available for errors inadvertently creeping in the practice of publishing clarifications/corrigendum. If grievances are not addressed internally, complaints against publications can be moved to the Press Council of India.

For content that is deemed defamatory, both civil and penal provisions are available. And perhaps the biggest check is the existence of healthy peer group scrutiny that has, in fact, been amplified in recent years by the social media.

The argument being made here is specifically against the use of coercive means, despite the availability of legitimate channels, to address grievances — because they act as barriers in the practice of freedom of speech. It is instructive here to retrace the journey of the safeguarding of this fundamental right against attempts to expand the scope of restrictions under Article 19(2) and the successive governments’ use of different state agencies to curtail it.

From the very beginning, there has been strong opposition to state control by journalists from both the Right and the Left ideological streams — with the RSS publication Organiser in the seminal case of Brij Bhushan vs State of Delhi and the Crossroads case of Romesh Thapar vs State of Madras. In Brij Bhushan’s case, the Chief Commissioner of Delhi issued a pre-censorship order on Organiser on March 2, 1950. Brij Bhushan, its printer and publisher, approached the Supreme Court that ruled that imposing pre-censorship constituted a restriction on free press. In the Romesh Thapar case, the Madras government banned Crossroads magazine under the Madras Maintenance of Public Order Act, 1949. Romesh Thapar, the editor, argued that it violated Article 19. “…Very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible,” observed the Supreme Court in Romesh Thapar’s case.

Resistance to curbs

While journalists, aided by the apex court, resisted the curbs, the government pushed forward. Vallabhbhai Patel, in a letter to Jawaharlal Nehru on July 3, 1950, wrote: “I draw your attention to the Supreme Court decision in Crossroads and Organiser cases. That knocks the bottom out of most of our penal laws for the control and regulation of the press…” Very soon, the Constitution (First Amendment) Bill amended Article 19(2) to insert three new restrictions on the right to speech — public order, friendly relations with foreign states and incitement to an offence.

The Supreme Court has, over the decades, gone into the restrictions and defined them specifically so as to discourage wider interpretation and abuse. Justice M Hidayatullah in Ram Manohar Lohia vs State of Bihar clarified the distinctions between simple ‘law and order’, ‘public order’ and ‘security of state’ as three distinct concentric rings — ‘law and order’ represents the largest circle within which is the next circle representing ‘public order’ and the smallest circle reflecting ‘security of state’. An act may affect ‘law and order’ but not ‘public order’ just as an act may affect ‘public order but not ‘security of state’.

In 2006, when film-maker Anand Patwardhan moved court for screening of his documentary Father, Son and Holy War, the Supreme Court applied the “standard of ordinary, reasonable” approach and said, “…the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.” In the 2015 Shreya Singhal case, SC struck down Section 66A of the Information Technology Act restricting online free speech, maintaining that the section was not saved by virtue of being a ‘reasonable restriction’ on free speech.

Quoting Justice Brandeis in his seminal concurring judgment in Whitney vs California, it said, “Fear of serious injury cannot alone justify suppression of free speech and assembly.”

Journalists have once again sought the Court’s relief in the case of Editors Guild of India (EGI) where senior editors have been slapped with FIRs charging them under different sections of the IPC. This is following the publication of a report on the media’s coverage of the conflict in Manipur. This would mark a new chapter in the discourse on freedom of speech in India.

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