Can free speech be stretched horizontally?

The recent controversy on the 'ban' of the weekly online magazine run by a group of students of Delhi's St. Stephen's College raises interesting questions with regard to free speech in India.

As reported by the media and stated in the inquiry committee report, a group of students at St. Stephens started an online magazine which was to contain updates about the affairs of the college. It was launched on March 7 but ran into trouble when the founders of this magazine uploaded an interview with the principal of the college (Valson Thampu), without waiting for his approval, a request he had specifically made. As a consequence, the principal not only asked for the interview to be taken down but also imposed a ban on the weekly magazine, suspended one of the student’s who founded the magazine and also debarred this student from receiving an award which he was nominated for (here).

The principal claimed that there was no 'ban' on the magazine, its publication was only 'postponed' till he reviewed the proposal again in July 2015 (here). Devansh Mehta (the student who was punished) filed a petition before the Delhi High Court claiming that Valson Thampu imposed “fetters on the much celebrated fundamental right to free expression” (here). Today, he managed to secure a stay on the suspension from Delhi High Court.

While there maybe a case for breach of trust, which the principal could pursue, was there a requirement to 'suspend' the publication of the magazine itself and was the punishment of suspension and elimination from an award disproportionate? These are relevant considerations that arise for freedom of speech and expression.

However, the case is not so straightforward because the person violating the fundamental right of freedom of speech is a ‘private person’ and not the ‘State’. This complicates the argument with regard to freedom of speech because it is generally understood that fundamental rights are enforceable only against the State i.e. vertically (as defined in Article 12) and not against private persons i.e. horizontally - unless expressly stated otherwise (for example Article 15 expressly states that it applies to both ‘State’ and non state actors).

Since Article 19 is silent with respect to whom it is enforceable against, the general rule of ‘vertical application’ may prevail. Therefore,  in today’s constitutional setup, if the State restricted the publication of this magazine (and 19(2) grounds were not fulfilled), an individual could directly challenge such an action under Article 226 and 32,  and subsequently win the case on the grounds of violation of his/her right to freedom of speech and expression.

But if a private individual tried to restrict its publication, as in this case, such a restriction is not characterized as a ‘fundamental right violation’ because fundamental rights are available only against the ‘State’. But it is clear that the effect of both actions is the same as both acts essentially result in curbing speech. Can one explore the possibility of ‘horizontally’ applying 19(1)(a) in this instance?

The norm that fundamental rights are enforceable only against the ‘State’ has developed from various historic incidents in the West - the State was seen as the prime ‘abuser’ and therefore fundamental rights were created as a means to protect individuals from overbearing and oppressive State actions. If Article 12 and 13 of the Constitution (that appear in the beginning of Part III (fundamental rights chapter) of the constitution and define ‘state’ and also provide that the ‘state’ shall not make laws that violate fundamental rights) is read against this incomplete background, then it will appear as if even in the Indian situation, fundamental rights were meant to be enforceable only against the ‘State’, thereby making Article 12 and 13 a preamble to Part III of the Constitution.

However, scholars like Prof. M.P. Singh caution against such a generalization, as they note that the Indian Constitution was drafted in response to not only to oppressive ‘State’ actions but also to oppressive non state actions (See M.P. Singh, Indian Protection of Human Rights against State and Non State Action in Private Law in the  Sphere of Human Rights (2007)).

This is evidenced by Articles 17, 23, 24 which deal with abolition of untouchability, trafficking, begar etc which were practised not only by the ‘State’ but also by private individuals. These fundamental rights do not mention the word ‘State’ and have been held to be enforceable against private individuals as well. This reveals that there is a possibility of applying certain fundamental rights not only ‘vertically’ (State-individual) but also horizontally (individual-individual).

Article 19(1)(a) which gives every citizen of India the fundamental right to freedom of speech and expression, does not use the word ‘State’. However, most of the cases before the courts are cases that involve Article 19(1)(a) violation by State actions. This may be because, unlike the social evils of untouchability, trafficking, begar,  which were widespread and well noticed ‘horizontal’ violations, the State alone may have been (in the past) the most obvious violator of freedom of speech. However, this assumption may not hold true in India today.

Some of the famous freedom of speech cases show us what kind of abuses the State indulged in with regard to this freedom. For example, the State began its efforts to ‘restrict’ freedom of speech by attempting to ban circulation of a particular newspaper (Romesh Thappar v. Union of India, 1950), later it attempted to restrict the volume of news and views that could be carried in a newspaper (Bennett Coleman v Union of India, 1973), the State has also attempted to restrict publications that were critical of state officials (R. Rajagopal v. State of T.N, 1994), peaceful demonstrations (Kameshwar Prasad v. State of Bihar, 1962), book bans, arbitrary restrictions on online communication (Shreya Singhal v. Union of India, 2015) etc.

Today, private persons are also indulging in similar abuses. In addition to the present case of the St. Stephen’s weekly magazine there are other examples of private actors indulging in ‘excesses’. For example, as reported, in 1998 Hamish McDonald’s book -“The Polyester Prince”, on Dhirubhai Ambani was not sold in India (here). More recently, the efforts of the Shiksha Bachao Andolan Samiti resulted in the withdrawal of the book 'The Hindus'. Moreover, restrictions on views critical of companies such as the Tata v. Greenpeace case, and several defamation cases involving IIPM,  are only few examples that show that, much like the State, private actors are also not tolerant towards criticism.

Therefore, since Article 19(1)(a) does not mention the word ‘State’, since Article 12 and 13 cannot act as preambles to Part III, and given that private players are also indulging in ‘excesses’ and ‘abuses’, there is a case for horizontal application of freedom of speech and expression. Such an application of freedom of speech will enable us to move towards larger freedoms and ensure that we don’t return to exploitation which was a significant characteristic of past centuries.

Another argument in support of horizontal application of freedom of speech is the scheme and construction of Article 19(1)(a) and Article 19(2). Constitutional law is a branch of ‘public law’, and vertical application is supported by this conception of constitutional law. But even if it is assumed that Article 19(1)(a) should apply only to the ‘State’, the scheme of Article 19(2) may lead us to different conclusions. Among the 19(2) restrictions, defamation, obscenity, morality, cover not only an 'individual and state relationship' but also a 'individual- individual relationship'. Given this scheme, it can be argued that Article 19, in itself, is not fully ‘public law’ and its scheme recognizes that the constitution can regulate private actions as well.