Although the ban on NDTV telecast for a day has been now put on hold by the government, the TV channel petition in the Supreme Court would raise the issues of the fundamental right to freedom of speech and expression. The SC is slated to take up the petition for hearing in the first week of December.
The one-day ban, withdrawn now, was for telecasting the Pathankot attack by Pakistan sponsored terrorists.
It has given rise to an important constitutional issue of the right to freedom of speech and expression under Article 19 (1) (a). Unlike the US or certain other countries, there is no separate or special “freedom of press” in India. What is guaranteed to all citizens also apply to the press or media. However, this issue (of telecast or broadcast or written articles in the press) enshrined as “right to freedom of speech and expression” would once again be expected to dominate the national debate.
But this right is not an absolute right. For that matter, no right is an absolute right in the Indian Constitution and every right is a regulated right. The popular example is you have the right to rotate your walking stick. But that right ends when it touches or hurt the nose of a fellow walker. Likewise, even the right to life is not an absolute right but a regulated right. A decision says it could be even curtailed or regulated, say for example during a state of Emergency. A murderer cannot say he has the right to life. It can be taken away as per procedure established by law. if a speech or expression or writing (here expression includes even a caricature or cartoon and the like) incite violence between two communities, spread hatred in the society, endanger sovereignty and integrity of the country, security of the nation, affects friendly relations with foreign countries, it could be curtailed and there is certainly punishment for that. Public order, decency, morality, contempt of court, defamation, incitement to an offence are, among others, some of the factors that would come to play if a speech or expression affects them.
This debate on rights has been on since the 1820s when the then British government promulgated an ordinance ordering every newspaper or periodical or publication to obtain a government licence. This is perhaps the starting point snowballing into today’s RNI regulations and other conditions to be fulfilled before starting any publication; now it includes television channels also. That’s anyway another story.
But in the 1820s, the ordinance for government licence for publications faced resistance from many and Raja Rammohan Roy was said to be the leading light of such opposition. To cut a long history short, let’s deal with the 1947 Constituent Assembly debate on the matter. The Draft Clause 8 of the Fundamental Rights was debated on 29 and 30 April 1947. This draft proposal subjected the right (of freedom of speech and expression) to three conditions: public order, morality, and grave emergency when the security of the country is threatened. Sardar Vallabbhai Patel dropped the proviso and an amendment moved by a member, Somnath Lahiri, to replace “security” with “defence” was rejected. After debates, the present Article 19(1) (A) found a place in today’s Constitution of India.
The first interesting case of freedom of the press was that of Blitz’s editor R K Karanjia when the Nehru’s cabinet decided to summon him to parliament and reprimand him. The matter was left with that. Then the issue was highlighted again in the Emergency years of Indira Gandhi when she subjected every publication to censorship. In the 1980s, her son Rajiv Gandhi, as prime minister, introduced a Press Bill (following the Bofors Howitzer gun scandal) but it was dumped in the face of stiff resistance.
The Supreme Court of India had in the past interpreted “speech and expression” which tended to “undermine the security of, or tend to overthrow or overawe the State”. But that was during the golden days of print media.
When the television era began in the mid-1990s, Cable Television Networks Act, 1995 was enacted by parliament. And so, what would now come under debate for the first time is this Act especially Sections 20(2) and 20(3) and Rule 6(1)(p) of the Programme Code, Cable Television Networks Rules, 1994, which grant powers to the Government to regulate or prohibit transmission or retransmission of any channel or programme.
Let us wait to see how this Act and those provisions and rules framed thereunder are interpreted.