How the Press carved out freedom of speech in India
In the early years of
All the early challenges based on Art. 19 (1) (a) were generally on the question of what constituted ‘public order’ and the first decade of the constitution saw the courts striking down a number of statutes on the grounds that they contravened Art. 19(1)(a) of the constitution. The rather dramatic start that was given to conflicts on free speech in Romesh Thapar (Romesh Thapar v. Union of India, AIR 1950 SC 124) and Brij Bhushan (Brij Bhushan v. Union of India, AIR 1950 SC 129) and were carried on in other cases as well, made the press into the battlefield between the legislature and the judiciary.
The introduction of the words ‘reasonable restriction’ into Art. 19(2) by the first amendment however enabled the judiciary to have an expansive and wide field whereby they could uphold general principles of restrictions. The early phase of free speech conflicts are also marked by the absence of any broadcasting cases, and most of the cases dealt with the print media. This has to do with the fact that broadcast media remained within the tight control of monopoly of the state, even as they struck down particular laws that prohibited speech. It is not till the eighties that the question of broadcast freedoms figured in the Supreme Court. Thus in many ways, the foundational premises of free speech and the kind of principles that have been established emerged in the context of the print media, and one of the questions for future research is the implication that this had on Broadcast media.
Let us take a look at the cases that expanded the idea of freedom of speech and expression, as they arose in the context of pitched battles between the press and the state.
In the sixties, a series of cases pushed the judiciary on the question of what the actual content of freedom of speech and expression actually meant. The initial position of the state had been to not provide any special rights to the press which were above and beyond those given to ordinary citizens. However, the nature of the claims made by the press forced the judiciary to expand the scope of Art. 19(1) (a) and create the conditions for freedom of the press. An example of this is the fact that while Art.19(1)(a) is technically available only to citizens, in Bennett Coleman v. Union of India, the court holds that if the publishers or the editors are Indian citizens, then they can challenge actions that infringe their fundamental rights on behalf of the company.
Commercial speech vs Free speech
The first major challenge on the scope of free speech came in the question of whether Art. 19 covered commercial speech. In Hamdard Dawakhana (Wakt) Lal Kuan, Delhi v. Union of India, The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 was which prohibited the advertisement of ‘remedies alleged to possess magic qualities’ was challenged by Hamdard Dawakhana, which prepared and sold Unani medicine and Sadhana Ausadhalaya, which prepared and sold drugs for the treatment of sexual diseases, were asked to stop the sale and advertisement of their products by the Drug Controller, empowered in this regard by the Act. The Solicitor – General contended that the prohibited advertisements do not fall within the ambit of ‘freedom of speech’ and that if the pith and substance of the Act were to be examined, it would be apparent that the rights guaranteed by Article 19(1)(a) were in no way ‘curtailed, abridged or impaired’.
In this case, the court held that an advertisement, though a form of speech, assumes the attributes and elements of the activity under Article 19(1) it seeks to aid – in this case trade and commerce under sub-clause (g) and not the freedom of speech under sub-clause (a), for its object is not the propagation of social, economic or political ideas, or the furtherance of literature or human thought but the promotion of trade. ‘Freedom of speech’, the Court said, ‘goes to the heart of the natural right of an organized freedom loving society to "impart and acquire information about that common interest"’ – advertisements of drugs, particularly of prohibited drugs not in the interests of the general public, as an appropriate cure for certain diseases cannot be said to be an exercise of freedom of speech. Thus commercial advertisements do not come within the ambit of Article 19(1)(a).
Thus it is clear that at least in the fifties, the court had a very restricted understanding of speech, and more often than not the distinction is on the grounds of political v. other modes of expression, and in the Hamdard case, the court held in favour of a law against commercial speech, even as it struck down a number of other legislations that restricted political speech. Interestingly, this decision is reversed in 1995 in the Supreme Court’s decision in Tata Press v. MTNL, where the court stated that "commercial speech" has two facets: (a) advertisement as a commercial transaction results in the dissemination of information about the product advertised, without which free flow of information the economic system would be handicapped and (b) the right of the public to receive commercial speech which stems from the fact that the right under Article 19 (1)(a) guarantees protection not only to the speaker but also the recipient of the speech.
The recipient of commercial speech, the Court said, may have ‘deeper interest in the publication than the businessman who is behind the publication’. The Court held that advertising is ‘the cornerstone of our economic system’ and that it is ‘the lifeline of the free economy in a democratic country’ – low prices, the Court said, depends upon mass production which depends upon ‘volume sales’ which in turn depends upon advertising. Thus the Court held that commercial speech is a part of Article 19(1) (a) of the Constitution. The Court held that this right cannot then be curtailed in order to create a monopoly in favor of the state.
The two cases are illustrative of the massive change in the mediascape as
Media, Circulation and Free Speech
Given the judicial intolerance towards restrictions on speech per se, the government, throughout the sixties, sought to use various restrictions to keep the press under a tight leash. While these did not necessarily curb speech, they helped create institutional conditions which made a free press difficult. And it is the challenges to these laws that enabled the coming into being of a well articulated and nuanced understanding of the conditions that enable or deter the ability to exercise ones right of freedom of speech and expression.
In Sakal Papers (P) Ltd. v. Union of India, the Newspaper (Price and Page) Act, 1956 was challenged. The Act enabled the Central Government to regulate the prices of newspapers in relation to their pages and size and also to regulate the allocation of space for advertising matters. Further, it fixed the maximum number of pages that might be published by the newspaper according to the price charged and prescribing the nature of supplements that could be issued. This act was challenged, and the Court held that the Act and the Order were void, being violative of Article 19(1) (a) of the Constitution. They were also not saved by Article 19 (2).
The Court asserted that the freedom of speech and expression guaranteed by Article 19(1) (a) included the freedom of the press. For propagating his ideas, a citizen had the right to publish them, to disseminate them and to circulate them, either by word of mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the volume of circulation. The impugned Act and the Order placed restraints on the volume of circulation, and interfered with the freedom of speech and expression. The Court held that Article 19 (2) did not permit the State to abridge the said right in the interest of general public. The Court also held that the State could not make a law which directly restricted one guaranteed freedom for securing the better enjoyment of another freedom. Freedom of speech could not be restricted for the purpose of regulating the commercial aspect of the activities of newspapers.
The court held that
"Its object thus is to regulate something which, as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech. viz., the right to circulate one's views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the Courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution".
Similarly in Bennett Coleman and Company v. Union of India (1973), The court held that the Import Control Order, 1955 to be violative of Art. 19(1)(a).
The Court held that it was a well settled principle that though Article 19(1)(a) does not expressly mention the freedom of press, the right to freedom of speech and expression does include the freedom of press and circulation. The Court further held that restrictions on the business activity of newspapers cannot abridge the freedom of speech and expression and that if it so abridged, the fact that it was in the interest of preventing monopolies did not amount to a reasonable restriction under Article 19(2). The state contended that the freedom of press includes the right of people to read and the ‘maintenance of an open society’ requires that monopolies do not exist. The Court held that free speech cannot be suppressed towards that end. The Court struck down the offensive portions of the Newsprint Policy, 1972-73 and held that newspapers should be left free to determine their pages, circulation and new editions within their quota of newsprint that has been fixed fairly.
Finally, in the third case that forms the trilogy of media business cases, in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (1986), the Court held that the expression "freedom of the press" has not been used in Article 19, but it is comprehended within Article 19 (1) (a). According to them the ‘expression means a freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which democratic electorate cannot make responsible judgments Freedom of the press is the heart of social and political intercourse. It is the primary duty of the Courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate’.
Shift to readers’ rights
What is clear from the trilogy of the newspaper industry cases are that you notice a shift that happens in the interpretation of ‘freedom of expression’ from an authorial right or a ‘speakerly’ right to a reader or listeners right. While all the battles are taking place on the terrain of industrial or business regulation, the normative claim that is made is always on behalf of a speaking or listening subject. It can also been read as debates in the very of a public sphere of communication, where the domain of information is seen to be the site where contests over citizenship, modernity and the public sphere take place.
The ability for the courts to reason out and rationalize in favour of speech mediated by the press was very different compared to the stance that it took vis a vis what it considered to be outside of the sphere of rational communication. Like the Hamdard Dawakhana case discussed above which betrayed the modernist biases of its times, other modes of public culture and expression such as cinema were never considered to be on the same plane of protection as political expression.