Free speech: Challenged, attacked, and finally protected

On September 11, a constitutional bench of the SC decided not to frame guidelines for reporting of court proceedings by
the media.

Last week, two decisions by the Supreme Court (SC) vindicated that the SC in India is the sentinel on the qui vive as it observed in 1952 in the State of Madras case and reiterated it in 2007 in Coelho judgement.

In one of the most important decisions in recent times, on freedom of speech and expression – as guaranteed by the Constitution of India under Article 19(1)(a) – on September 11, a constitutional bench of the SC decided not to frame guidelines for reporting of court proceedings by the media.

Earlier this year, the SC had constituted a constitutional bench to frame the guidelines as it was not too happy with the way the media were reporting court proceedings, particularly cases where there was a substantial risk of prejudicing the trial and administration of justice, and the manner in which the media was sensationalising such news.

In the judgment, the court observed that the media should follow a self-imposed restriction and should by itself know where to draw the line.

However, the court made it clear that in certain cases in which the matter is sensitive and too much reporting by the media may have an adverse impact on the proceedings in the court, the court may order postponement of reporting by the media of proceedings of such cases.

The court said that the doctrine of postponement was only a preventive measure and neither punitive nor prohibitive. The Constitution provides the freedom, however this freedom is not absolute, and reasonable restrictions can be imposed by the State on certain grounds mentioned in the Constitution, which primarily are for the larger interest of the people of India.

The SC made it clear in the decision that the restriction imposed – postponement of reporting in certain cases – was well within the meaning of reasonable restrictions.

The most important aspect of this judgement is that the court upheld the fundamental right of freedom of speech and expression of the citizens of India by refusing to frame guidelines across the board, and at the same time did its bit towards the societal interest by using the neutralising technique of postponement of reporting.

It should also be noted that this postponement is not a matter of right, but to avail it, a petition has to be filed in the appropriate court and the judge in that court would exercise judicial discretion while making the decision.

Thus, postponement will not happen on its own. Hence, one can conclude that free speech is the norm – as interpreted and upheld by the SC – and postponement is only an exception.

Another interesting decision was this week’s Bombay High Court decision regarding the cartoon and sedition charges row.
The Mumbai police had arrested Aseem Trivedi – a cartoonist, who made a number of cartoons depicting rampant corruption in Indian politics and had used national symbols like the Parliament, the Constitution, etc – on charges of sedition.

Granting bail to Trivedi, the Bombay High Court described the police action as arbitrary and frivolous.

The year 2012, so far, has witnessed free speech in India being challenged, threatened and attacked. It is heartening to see that finally it has been protected.

Anurag K Agarwal is a faculty of Business Policy Area at IIMA and can be reached at akagarwal @iimahd.ernet.in.