Tag: freedom of the press

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Human Rights

Where “breast” becomes “chest”: Extra-legal penalties and the muddled regulation of Indian TV

AparGupta_freedomofspeechAre you familiar with ‘newspeak’? No, not the fictional language from Orwell’s Nineteen Eighty-Four. I am referring to the language beamed across India on television channels every minute. In it, “breast” becomes “chest”, “panties” becomes “pants”, and “beef” becomes “meat”. This display of Victorian sensibility on television is the result of government regulation and private attempts to avoid harsh penalties. Let us examine in detail the regulatory muddle causing this witless display.

Regulating television broadcast

The Cable Television Networks (Regulation) Act, 1995 (“the Act”) was enacted as the principal legislation to govern television channels in India. Section 5 of the Act prepares the ground for content regulation of broadcasts and prohibits telecast of programmes that do not conform to the “prescribed content code”. The Act itself does not define such a “content code”, it has been prescribed in the Cable Television Regulation Rules, 1994, a piece of delegated legislation. Rule 6, popularly called the “Content Code rules”, contains a laundry list of various parameters within which all programme content has to be telecast.

They are vague, generalised, and seek to assuage the hypersensitivity of the most conservative individuals. For instance, it prohibits content that “(i) Criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;” or, “(k) Denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;”. Such language may appear innocent but becomes nocuous when it has the force of law.

It is also relevant to notice the Policy Guidelines for Uplinking of Television Channels from India, which regulates licenses to television broadcasters to transmit signals from India and the Policy Guidelines for Downlinking of Television Channels to India, which regulates the licenses for transmission to television sets in India (“the policy guidelines”). Both of them contain a chapter titled “Terms and Conditions” that mandates that licensees should comply with the Content Code, failing which licenses for transmission may be rescinded.

Enforcement of television broadcast regulations

WorkSafeAntiSexualHarassmentWhat is a right without a remedy? What is a prohibition without a penalty? Both the Act and the policy guidelines prescribe the consequences of breaching the Content Code rules. The Act permits the Union government to prohibit the transmission of any channel or programmefor a prescribed period of time or even permanently. The policyguidelines contain further details including a three-strike clause,under which the nature of the penalty increases upon repeat violations andon the third violation, the government can revoke the license of a television channel.

The content code and its penalties are not enforced by an independent regulator but a body of senior bureaucrats called the Inter-Ministerial Group. Chaired by the Secretary of the Ministry of Information and Broadcasting (“the Ministry”), it reviews complaints sent by the public and through another government body, the Electronic Media Monitoring Centre,screens content on television for violations of the Content Code rules. Even if this may sound reasonable in theory, due to the vagaries of the Content Code rules and the harsh penalties for their violation, some peculiar practices have evolved to cause censorship even without the need to revoke the license of a broadcaster.

These practices include the enforcement of extra-legal penalties. A letter from the Ministry to various state governments dated February 19, 2008 states that violations of the Content Code should be dealt with by issuing advisories, warnings, and orders to display apology scrolls. A list of actions or decisions taken for violations of the Content Code between 2004 and March, 2014 lists only 254 cases. Only in 21 out of these 254 cases has the statutory penalty of prohibition of broadcast been imposed. In the remaining 233 cases, despite a specific finding of a violation, the action was either the issuance of an advisory or a warning, or an order to display an apology scroll.

The problem with such an approach is plainly evident. The penalties which are in the nature of advisories, warnings, and orders to display apology scrolls are not prescribed under the Act. They do not have legal force and (at least in theory) do not censure the broadcaster. This may appear to be the benevolence of the State in ensuring freedom of speech but in fact results in the contrary. Legalities are punished and illegalities are conceded.

CensorshiponTV

Such extra-legal penalties are much more harmful for media plurality and content diversity. They allow hypersensitive censors to cut up sentences on the mere apprehension of insensitivity or even criticism.Prior to issuing the warning, advisory, or the direction to run an apology scroll, the private broadcaster is given an opportunity to present their defence. Most often, while presenting such a defence, a private broadcaster submits an apology and seeks pardon for the alleged transgression. This is understandable. In the absence of such deference and self-censure, the penalty may increase from a mere warning to either the prohibition of the telecast of the channel or worse, the cancellation of the license to broadcast.

Such measures, which lack the force of law, also come at the cost of ignoring serious violations for which harsh penalties may be justified. To illustrate, various quiz-based shows make inadequate disclosures about the charges of participation and are designed to dupe viewers. To participate, a viewer has to make a phone call to a number carrying an excessive and expensive per-minute charge (often the pulse duration is even less than thirty seconds). On making such a call, the viewer is placed on hold for several minutes so that the channel earns revenue from the call. Rather than taking any firm action about such dishonest practices, the Ministry, on the receipt of several complaints, merely issued an advisory on September 29, 2011. Expectedly, these quiz shows and the cheating of viewers continues unabated.

Another name for censorship

Self-regulation has more recently been posed as an industry alternative to state censorship. Self-regulation, it has been argued, presents the ideal balance between artistic freedom and cultural sensibilities. Two prominent self-regulatory bodies floated by television channels are, the Broadcast Content Complaints Council (“BCCC”) and the News Broadcasting Standards Authority (“NBSA”). These two organisations havepublished self-regulatory codes and even have an adjudicatory mechanism in place, and through these measures, hope to ensure compliance with the Content code and maintain artistic liberty at the same time. Their results till date, have been questionable.

At a conceptual level itself, the self-regulatory codes have for the first time, put in place a formal content-screening process based on the Act itself. While they may read the law liberally, they do not depart from its fundamental regression. The Content Code remains the basis of prescribed criteria under the self-regulatory guidelines. Content code. It is important to stress that censorship was the Content Code has always been “post-publication”, that is, enforced after the telecast.

Now on the other hand, most television channels formally screen their content through their ‘standard and practices’ departments. That is the reason we are inundated with creative edits to words which may cause offence. Innocuous words such as, “breast”, “sex”, and “virginity” are either bleeped or dubbed over completely. Worse, there are the subtitles that display the word  “chest” or a string of stars – “*****” – where the word “breast” should be. This is done devoid of context, for instance, even where the phrase is “breast cancer”. Certainly, even when television channels act as censors, they often replace their scissors with a butcher’s knife.

Other problems persist with self-regulatory censorship. There is a limit to their jurisdiction and reach. The orders of the BCCC and the Indian Broadcasting Foundation are not enforceable in a court of law. Often private compromises are reached and such instances have been documented. Moreover, only a fraction of the channels have become members of such organisations. Out of the 402 general entertainment channels, only 250 are governed by the BCCC. Similarly, out of the 393 news channels registered in India, only 45 are members of the NBSA. There also concerns about a lack of transparency in the publication of complaints and orders. Such concerns need to be addressed through legislation.

Way forward

InfrastructureLawRecently with a change in government, there has been a push to review existing legislation and policy. The Minister for Information and Broadcasting said on June 7, 2014, that he was in favour of abolishing state regulation. Even though such measures may be excessive, to ensure a modicum of sensibility to content regulation, the following steps are suggested.

The self-regulatory organisations to their credit, have not acted merely as bodies to limit the harsh penalties under the Cable Television Networks Act. They have in the past requested for a system of co-regulation, in which a legislation grants them statutory recognition and aids in curing the legal deficiencies that exist. They recognise that at present, they are at best a stop-gap arrangement.The longer such an ad-hoc system continues, the more damage there will be to artistic freedom and freedom of speech.

We also need to look beyond the regressive content code. Any content regulation must place an emphasis on context and censorship has to be proportional to the end that is sought to be achieved. An easy alternative is to link the content code to existing penal provisions. For instance, rather than prohibiting, “criticism of individuals”, a reference may be made to Section 499 of the Indian Penal Code, 1860 containing the offence of defamation. Even though such provisions may be regressive, theyat least have legal ingredients that have been refined by court rulings. Moreover, the present system of overbroad censorship, often caused by broadly defined categories under the Content Code, will abate. Most offences contain precise definitions and legal ingredients which can be applied more easily and in a limited manner by the television channels.

Finally, any legal reform must appreciate the role of the public as not only having the right to complain against offensive content but also the right to view it. Hence, the element of public injury which permits complaints, needs to ensure a system of transparency and pro-active disclosures. Any censorship which is caused, either by private self-regulatory bodies or by the government, needs to be disclosed and published. Moreover, even third parties should be permitted to file legal challenges against any censure. Such a remedy would add teeth to the right to view and receive information which has been recognised to be part of the freedom of speech and expression and is even recognised in cases of censorship of books and written materials.

These solutions would merely be the beginning. The more fundamental question that has to be answered with courage and honesty is to what extent law should censor television broadcasts. If we shirk away any longer, we may continue being governed by a content code which restrains breast cancer awareness programming but permits sensationalist news broadcasts about young women drinking in pubs.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

Categories
Human Rights Supreme Court of India

TRAI’s media ownership recommendations rest on contested understanding of free speech

GautamBhatia_SupremeCourtofIndiajpgOn August 12, the Telecom Regulatory Authority of India (“TRAI”) released a set of recommendations on issues relating to media ownership (Medianama has a great summary, available here). TRAI’s recommendations cover a range of topics, including political and corporate control over the media, issues of horizontal and vertical integration, private treaties, and paid news. The background of the enquiry is revealed in the Introduction. The second paragraph, for instance, notes that: “the right to freedom of speech is essential for sustaining the vitality of democracy. This is why the right is sacrosanct; it is fiercely protected by the media. The question that arises is whether reposing such a right in the media simultaneously casts an obligation on the media to convey information and news that is accurate, truthful and unbiased… the point is: is not the right of readers and viewers to access unbiased and truthful information from the media embedded in the right of the freedom of speech of the media?” (1.2)

Speaker’s freedom of speech and listener’s freedom of speech – Supreme Court decisions split between libertarian and social democratic approaches

Is it, though? Some countries have embedded this viewpoint in their constitutional texts. The German constitution, for instance, guarantees to everyone the right to “freely inform himself from generally accessible sources.” The International Covenant on Civil and Political Rights, whose language is closely mirrored by the South African constitution, protects the right to “seek, receive, and impart information.” These constitutions accord equal weight to the interests of both parties to a system of communication: the speakers (that is, in this case, the media), and listeners (readers and viewers). By comparison, Article 19(1)(a) is sparsely-worded and speaker-oriented: “all citizens shall have the right to freedom of speech and expression.”

InfrastructureLawOver the decades, Article 19(1)(a)’s inconclusive language has divided the Supreme Court of India. Judicial history reveals two distinct – and contrary – understandings of our free speech clause. Let us call these the libertarian understanding and the social-democratic understanding respectively.

According to the libertarian understanding, the free speech clause protects the interests of speakers against coercive governmental control. Freedom of speech exists so that the street-corner orator and the dissident journalist can disseminate their opinions to the public without fear of State persecution or censorship. State regulation that curtails the power of any entity to “speak” is therefore presumptively unconstitutional (it might, of course, be saved by Article 19(2)). The libertarian understanding is best exemplified by the Supreme Court’s newspaper-regulation cases, starting with Sakal Papers v. Union of India, in 1960. In that case, the government imposed a price-per-page regulation upon newspapers, and also restricted the number of advertisements they could carry, as well as the volume of Sunday supplements. The affected newspapers took the case to the Supreme Court. The government argued that the purpose of the regulations was to break the market-monopoly enjoyed by established newspapers. Because of economies of scale, such newspapers were able to keep their prices so low, that they became a veritable entry-barrier for new newspapers to access the market. Or, in other words, the regulations were aimed at facilitating the free speech interests of the public (to have access to a diverse set of sources of news) and non-established media players who wished to enter the market. The Supreme Court rejected this contention, and struck down the regulations on 19(1)(a) grounds.

The government’s argument in Sakal Papers reflects the social-democratic understanding of free speech. Free speech – on this view – is an integral part of democracy, and its value – to quote the American Supreme Court judge Hugo Black – “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” The roots of the argument go back to the great free speech scholar Alexander Meikljohn, who argued that if citizens are to effectively participate in the democratic project, then they must have access to information and iHugoBlack_freepressdeas on the basis of which they can formulate sound opinions about the common good, and exercise refined political judgment. Unlike the libertarian understanding, which puts State and individual at odds, the social-democratic understanding views State and individuals as collaborators in an enterprise aimed at creating thriving and vibrant public sphere. On this understanding, the market – just as much as the State – can become an impediment to this project (as was the case in Sakal Papers).

The Supreme Court in Bennett Coleman affirmed the decision in Sakal Papers (over a strong dissent by Justice K.K. Mathew). In other cases, however, the Court has adopted the opposite viewpoint. In LIC v. Manubhai D. Shah, it imposed a compulsory right-of-reply upon the in-house journal of the Life Insurance Corporation, so that readers could have access to both sides of a debate. And in Cricket Association of West Bengal – which was a case about broadcasting regulations – it famously held that “it is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can monopolise the dissemination of views and information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others.”

The basic concern of the social-democratic approach – as vividly exemplified by the quoted excerpt – is that the freedom of speech, in today’s world, is mediated by a market-based infrastructure (televisions, newspapers), access to which is often in the hands of non-State parties. If the goal is to create a thriving public sphere, then regulating this market becomes not only desirable, but positively necessary.

TRAI recommendations go beyond competitiveness in the media market

Network18Mukesh_Ambani_
Mukesh Ambani’s Reliance Industries has made a large investment in Network 18, a holding company for several Indian media entities.

With the Supreme Court’s jurisprudence split down the middle, the TRAI Recommendations unambiguously take the side of the social-democratic approach. For instance, in the Introduction itself, TRAI rejects the argument that the existing regulatory regime of competition and anti-trust law, which is aimed at preventing market dominance in a way that stifles effective competition, is sufficient in the sphere of the media. It notes that “the media cannot, and should not, be bracketed with general commodities and services… the principles adopted in the competition law may not serve the special purpose of addressing the need for plurality of news and views.” (1.12) This is a particularly interesting observation. On the libertarian model, government intervention should be restricted to cases of market failure, which are specified in an effective competition law regime. The TRAI Recommendations are based on the premise, however, that because of the importance of free speech to the democratic project, it is not sufficient merely to maintain a threshold level of competitiveness, but intervene further in order to ensure the goal of plurality.

These ideas come to the fore in TRAI’s substantive recommendations. In Chapter Two, it is concerned with defining the concept of “control” in the case of media companies. “Control” is defined both in the Companies Act, and by the Competition Commission. TRAI observes, however, that “in view of the sensitivity surrounding the diversity of news and views in a democracy, it is important to frame rules to include all possible mechanisms by which an entity can influence a media outlet… a comprehensive definition of control [is required] exclusively for the media industry.” (2.9) TRAI’s final definition of control is wide-ranging, and includes “covert understandings” that enable entities to control “decision-making in the strategic affairs… and appointment of key managerial personnel” of a media outlet. (2.13)

External and internal pluralism

The definition of control is central to assessing the “diversity” of media markets, and it is the objective of achieving diversity and plurality that constitutes the core of TRAI’s Recommendations. Chapters Three and Four address issues of “external pluralism” – that is, diversifying ownership and control, and preventing vertical integration of media markets. When identifying the relevant “market” in order to address cross-media ownership issues, TRAI restricts itself to the news and current affairs genre, because of its centrality to “influence[ing] the opinion-making of citizens.” (3.13) It restricts the relevant segments to television and print (excluding the Internet) because of the reach they enjoy. And it defines the geographical market in terms of language, and the State in which that language is spoken in majority. For example – to use the example TRAI gives – a relevant “market” (to assess issues of concentration and diversity) would be Bengali newspaper and television market, which is engaged in the dissemination of news and current affairs, in West Bengal. (3.28) As one can see, the dominant idea is that the average Bengali consumer’s main source of news is Bengali television and Bengali newspapers. Plurality within this market, so defined, is therefore of utmost importance. The Recommendations then go on to make technical suggestions about the regulations needed to prevent and dilute concentration.

APCCLP_CompanyLaw-BannerThe TRAI Recommendation are not, however, limited to ensuring external pluralism by enabling a diversity of voices to access the marketplace. Chapter Five addresses concerns of internal pluralism – that is, not just who is speaking, but what is being said. Here, the Recommendations address the problems of paid news, private treaties (through which a media entity acquires shares in a corporation in return for favourable reporting), advertorials (advertisements which, in form, content and placement, provide a misleading impression that they are news reports), and the blurring of ownership and editorial functions. TRAI recommends statutorily rules that expressly proscribe these practices. As we can see, these recommendations are grounded in the idea that the freedom of the media to communicate is subordinate to its responsibility to ensure that the content of what it communicates is free of vested interests. This takes us back to the social-democratic understanding of free speech, where the ultimate objective is to ensure that no entity – whether the State, using its coercive power, or private players, using their market power – can distort the free and holistic circulation of ideas and information in the public sphere.

Taken as a whole, the Recommendations are rich and detailed, and provide much food for agreement as well as disagreement. For instance, restricting the product market to “news and current affairs” ignores the pervasive influence of culture in the public sphere. Indeed, it rests upon a particularly constricted idea of free speech and “democracy” (that, as being restricted to the explicitly political) that was first propounded by Meiklejohn, but which he himself subsequently repudiated, in favour of a broader understanding. Nonetheless, the aim of this essay has been to demonstrate that the best way of understanding and assessing these Recommendations is to ground them within a particular (and contested) understanding of Article 19(1)(a), that has – at least partially – been endorsed by the Supreme Court.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)

Categories
Human Rights

The power of licences to censor

AparGupta_freedomofspeechAny study of censorship has to commence with the power of licensing. Shortly after the War for Independence, our colonial masters realised that it was inefficient to enforce criminal sanction for each distinct act of dissent when the mode of expression itself could be prevented by prescribing a set of licensing conditions. Simply, why pulp the paper when you can seize the printing press?

The establishment of a monopoly

The initial prohibition on vernacular publications slowly gained sophistication. The first feature of the licensing system was the express creation of a state monopoly through statute. Private industry had to then operate within a set of requirements prescribed in the statute. Take for instance, the licensing of telegraphs.

Though the physical apparatus of a telegraph has ceased operation, the Telegraph Act, 1885 still holds the field. Under Section 4, the Central Government has the exclusive privilege of establishing, maintaining, and working telegraphs in India. So, even after the process of liberalisation and iterations of the National Telecom Policy, every private telecom operator remains a mere licencee of the Central Government. This licence, which may be a Unified Access Services licence or an Internet Service Provider licence often becomes a unilateral contract prescribed by the Government. All private operators, and by extension their subscribers, have to adhere to the conditions in these contracts.

Licences in India control the medium of dissemination, the substantive content that is disseminated, and some times even the receipt of content. This is all done on the basis of the medium itself, as the law discriminates between newspapers printed on paper, movie exhibitions, television signals, and telephone conversations. Layered and complex, the law consists of law made by Parliament and the State Legislatures. The regulation of newspapers today illustrates this well.

Licensing through registration

Sisir Kumar Ghose (above) was the founder of the Amrita Bazar Patrika, a newspaper that was said to be a principal target of the Vernacular Press Act, 1878, which was passed under the Governor Generalship of Lord Lytton. The law provided for submitting to the police, all the proof sheets of Indian language newspapers before publication.
Sisir Kumar Ghose (above) was the founder of the Amrita Bazar Patrika, a newspaper that was said to be a principal target of the Vernacular Press Act, 1878, which was passed under the Governor Generalship of Lord Lytton. The law provided for submitting to the police, all the proof sheets of Indian language newspapers before publication.

One of the largest mediums in terms of reach, an absolute monopoly has not been expressly prescribed for newspapers. The relevant legal provisions of the system of licensing are contained in the Press and Registration of Books Act, 1867 (“the 1867 law”). Even though the Statement and Objectives state the innocent objective of ensuring that copies of every publication are properly archived by the State, the law goes much beyond ensuring a comprehensive catalogue of the news. The law, which also applies to books and pamphlets, calls for the compulsory declaration of the name of the printer and publisher and the registration of every printing press before the District Magistrate.

A.G. Noorani, in a series of articles published in the Economic and Political Weekly, has documented how this law has been used to enforce (often unlawful) censorship in smaller towns and areas outside metros. The smaller vernacular press also lacked the financial muscle and the professional networks to draw attention, and to resist these attempts. He has highlighted the fact that such declarations are often used by the state administration to harass owners and editors and has also cited one instance where a District Magistrate, relying on a highly technical rule, cancelled the registration of a local newspaper.

Indirect attempts at censorship

This 1867 law pales in comparison to the effort made by the Union Government to neuter the press with the enactment of the Newspaper (Price and Page) Act, 1956, which empowered the Union Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space in newspapers for advertising. In Sakal Papers Ltd. v. Union of India, the Supreme Court determined the constitutionality of this law. The judges stated expressly that the attempt to limit monopolies by fixing prices against the number of pages printed was an attempt to interfere with the freedom of circulation of newspapers and declared parts of the law repugnant to the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, and hence unconstitional.

This decision however, did not impede governments from regulating the content in newspapers through licensing. The Newsprint Policy for 1972-73 made under the Newsprint Control Order, 1962, attempted to ration newsprint. The owners of the Times of India approached the Supreme Court alleging that it violated their fundamental rights, and in Bennett Coleman and Co. and Others v. Union of India, Justice Sikri, speaking for the majority said that the measure was “not newsprint control but newspaper control.” While the Court declared the policy to be contrary to Article 21 for being arbitrary and against Article 19(1)(a), it also emphasised that the power of the government to import and control the distribution of newsprint cannot be denied. The exercise of such power however, has to be within the bounds of the Constitution.

Reframing the law

IPThe Union Government has recently proposed an update to the antiquated 1867 law, increasing its thresholds. Firstly, the Draft Press and Registration of Books Bill, 2013 proposes to extend the coverage of the law to online editions of newspapers. Secondly, it proposes a substantive review of the application for registration itself and prohibits persons convicted of acts of terror and unlawful activity from making such publications. While a convicted terrorist may be guilty of terrorism, such a conviction does not extinguish fundamental rights and it is not understood how such an absolute and complete pre-censorship can be imposed.

A larger concern is the continuity in approach with the 1867 law and the proposals only seek to make the law more onerous. This colonial mistrust of the Press is misplaced with our aspirations of being a mature democracy that trusts its citizens and this amount of regulation is an indicator that rather than tackling such issues with better policing and increased transparency, State entities fear that publications will prompt law and order problems.

This will be a theme in my forthcoming columns as well, specifically focusing on the regulation and censorship of movies and the broadcast of television content. I hope to demonstrate that rather than merely extending the existing regulations, we need a nuanced debate impugning the basis of our colonial laws. With the spread of Internet and mobile communication, we are witnessing a change of season. Laws are becoming redundant, not with the progress of time, but with the progress of technology. Licensing regulations, which sprouted with a sepoy revolt and were then bonded in fabian socialism, need to be shed this autumn.

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)

Categories
Human Rights

Not just false fire alarms: time to re-examine Indian laws that limit speech and expression

AparGupta_freedomofspeechA terse ruling by the United States Supreme Court in Shenk v. United States (1919) contains a powerful metaphor on legal arguments about the freedom of speech and expression. “The most stringent protection of free speech”, Justice Holmes said speaking for the Court, “would not protect a man in falsely shouting fire in a theatre and causing a panic”. Even though the Court has since moved away from it as a legal standard (Brandenburg v. Ohio (1969)), it continues to clearly illustrate the idea that the freedom of speech and expression is a conditioned right subject to constitutional limitations. For instance, the Supreme Court of India quoted Justice Holmes in the Ramlila Maidan Incident Case (2012).

Original limitations on free speech

The Constitution of India (“Constitution”) follows this scheme and provides a conditioned right to the freedom of speech and expression. Article 19(1)(a) provides for the fundamental right to freedom of speech and expression and Article 19(2) places restrictions on it. Known as “reasonable restrictions” today, they permitted the legislature to make enactments that fall within the grounds enumerated under it.

Article19(2)_1950 The ink had not dried on the Constitution when petitions were filed in various courts testing the extent of some laws that criminalised speech. While gauging the validity of such laws, the Supreme Court was called in to interpret Article 19(2).

Petitions challenging public order statutes

The Supreme Court interpreted the scope of Article 19(2) as it stood originally in two batches of petitions before it — Romesh Thappar v. State of Madras (1950) and Brij Bhushan v. State of Delhi (1950). In Romesh Thapar, the Court held parts of the Madras Maintaince of Public Order Act, 1949 to be beyond the ambit of the grounds contained in Article 19(2) and struck them down as unconstitutional. On similar reasoning, Brij Bhushan held pre-censorship orders issued under the East Punjab Public Safety Act, 1949 to be unconstitional. Justice Fazal Ali dissented persuasively in both cases, arguing that the enactments fall within the ambit of Article 19(2). H.M. Seervai, citing the presumption of constitutionality, has agreed with his views.

Some High Court judgments also did what the Supreme Court did. For instance, the crime of sedition and the Press (Emergency Powers) Act, 1931 were held unconstitutional. These petitions set the stage for the Parliament of India to consider the first amendment to the Constitution of India.

The 1st Amendment

On May 16, 1951, a mere sixteen months after the Constitution was adopted, a bill to amend it was introduced in the Parliament. The 1st Amendment Bill stated that “…Article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder or other crimes of violence” and sought to amend and expand Article 19(2). Importantly, the word, “reasonable” was inserted in the Bill after a Select Committee report was adopted on May 29. Article 19(2) was then amended by the Constitution (First Amendment) Act, 1951.

Article19(2)_AfterfirstAmendment

The Supreme Court was considerably accommodative in the constitutional appraisal of laws alleged to be in conflict with the amended Article 19(2). In Ramji Lal Modi v. State of Uttar Pradesh (1957), the constitionality of Section 295A of the Indian Penal Code, 1860, which contained the offence of insulting a religion, was challenged. The provision was in the news recently when publisher Penguin India claimed that the threat of prosecution for this offence was the reason it withdrew a book by Wendy Doniger.

Analysing it, the Court held that “the expression ‘in the interests of’ occurring in the amended Cl. (2) of Art. 19 had the effect of making the protection afforded by that clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tendency to cause public disorder.” With the passage of time, there has been growing recognition that Article 19(2) as amended, was framed for the convenience of a police constable and not for the liberty of artists, writers, and citizens.

The necessity of reasonable restrictions

Justice Oliver Wendell Holmes Jr. did not enjoy false fire alarms.
Justice Oliver Wendell Holmes Jr. did not enjoy false fire alarms.

Even though the Supreme Court has not struck down many such laws as unconstitutional, it has often limited their operation by reading requirements into them. The scope of Article 19(2) has been considerably expanded and cases such as Romesh Thappar and Brij Bhushan are no longer good law but the judiciary has often seized upon the requirement of “reasonableness” in support of these limitations. Take the example of the cases on sedition, an offence contained in Section 124A of the Indian Penal Code, 1860.

The Supreme Court in Kedar Nath Singh v. State of Bihar (1962), while holding the provision to be constitutional, placed several limitations on it by holding that only those acts that had the intention or tendency to incite public disorder or violence would invite prosecution. The Court noted that it was clear that “criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.”

This sentiment can also be seen in the recent case of Pravasi Bhalai Sangathan v. Union of India and Others (2014), where it refused to issue directions for increased penal sanctions against ‘hate speeches’. The Court asked the Law Commission of India to study the applicable law and said, “It is desirable to put reasonable prohibition on unwarranted actions but there may arise difficulty in confining the prohibition to some manageable standard and in doing so, it may encompass all sorts of speeches which needs to be avoided .”

However, given that every few weeks, the Press highlights instances of the egregious abuse of these provisions, many have questioned the effectiveness of these court crafted doctrines and limitations.

The way forward

AseemTrivedi_BinayakSen
Assem Trivedi, Binayak Sen

The prosecutions of Binayak Sen, cartoonist Aseem Trivedi, and the Kashmiri students at Swami Vivekanand Subharti University present a mismatch in the doctrinal limitations imposed by Court precedent and the prosecutions that disregard them. These errors are corrected, if ever, through the appeals process but not before a punishment is visited in the form of pre-trial detention or even by the harassment caused by the prosecution itself. The Supreme Court’s precedent seeks to limit the application of such penal provisions but it is often disregarded at the stage of trial. This experience makes a strong case for their amendment or repeal. Though inconvenient given the current state of our polity, the proper forum for arguments about changing laws affecting speech and expression in India is the floor of the Parliament, not the Chief Justice’s court.

A concluding caveat on the arguments to amend Article 19(2) itself, rather than delete specific penal laws. Article 19(2) only provides an outer limit for legislation and not a constitutional imperative for the enactment of reasonable restrictions on speech. Today, the vast expanse of our penal laws not only prevent false fire alarms in cinemas but even criminalise the screening of movies. The time is ripe for the Law Commission of India to study how the laws that limit speech and expression are defined by their abuse and intolerance of dissent.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.