My Article on Media’s Right to Free Speech, published in TOI, November 5, 2015.

Posted on November 05, 2015, No Comments admin


The Constitution gave a pre-eminent position to the Right to Free Speech. Whereas, the other fundamental rights could be restricted through reasonable restrictions, the Right to Free Speech could only be restricted, if the restriction had nexus with any of the circumstances mentioned in Article 19(2) of the Constitution.

India’s post-Constitution history is an evidence of the fact that many Fundamental Rights have seen their weakening in the past sixty five years. The Right to Life and Liberty was literally extinguished during the Emergency. The Right to Trade has been adversely affected in the days of the regulated economy. The Right to Property was repealed during the Emergency.

However, the Fundamental Right of Free Speech and Expression has been consistently strengthened and never narrowed down. So a national policy of expanding and strengthening the right has continuously existed over a period of time.

In the initial years of the Constitution, the Supreme Court held that the excessive license fee for starting a newspaper was constitutionally invalid. Subsequently, in the very first decade, it was held that the Wage Board imposing an unbearable burden on a media organization, would offend Free Speech.

Can the business or commercial interest of a newspaper be segregated from the Right of Free Speech? Would the business of a newspaper fall within the domain of the Right to Free Trade or would it impact on the Right to Free Speech?

In the Sakal newspaper’s case, the Supreme Court was concerned with the policy imposed in 1960, wherein the government decided to regulate the selling price of a newspaper. The sale price would depend on the number of pages. The Government contended that it was only restricting the Right to Trade by a reasonable restriction in consumer interest.

The Supreme Court held that, if a newspaper was compelled to raise its price on account of the thickness of the newspaper it would have two consequences, either the thickness, i.e. the content would be reduced or alternatively, a newspaper would be compelled to raise its price, and, there was empirical evidence to suggest that an increase in price leads to loss in circulation. Thereby, the Right to Circulate is also a part of Free Speech.

Similarly, when the Government restricted the size of a newspaper on the ground that newsprint was scarce on account of paucity of foreign exchange and excessive imports would lead to an outgo of foreign exchange, the Supreme Court held that curtailing the number of advertisements in a newspaper would impact Free Speech, since advertisements themselves supplement the cost of content.

In a landmark judgement in the newsprint customs duty case, the Court was confronted with the question whether imposition of customs duty on newsprint can be challenged on the ground of it being “Tax on knowledge”. The court held that the business of a newspaper could never be segregated from its content.

In the Constituent Assembly, Ramnath Goenka had raised the issue that future Governments would not resort to crude methods like censorship but would pinch the pockets of the newspapers. Agreeing with this view, the Court held that newspapers shape the human mind, excessive tax on a newspaper itself could impact Free Speech if the purpose of the tax was not merely to raise revenue but to excessively burden the economy of the newspaper.

In the case of any trade, business or profession, taxation would be struck down only if it is confiscatory in nature, that is, if it makes the business impossible. But in the case of a media organisation, if it adversely impacts the right to free speech, that is, makes it excessively costly and prohibitive, then the tax itself can be challenged as an invasion of free speech.

Most other democracies have not accepted the American precedent, but we in India went ahead and accepted this particular right. I think in its entire evolution, the customs duty case — in its exposition of law and expanding the right — became a landmark, in that the distinction between the business of free speech and the right of actual content of free speech itself, was obliterated.

Carrying this logic further, the Supreme Court, in the Tata Yellow Pages case, included commercial Free Speech, i.e. advertising, to be a part of Free Speech. This proposition is still doubtful, since it could enable “paid” news to take the benefit of commercial speech being a part of Free Speech.

Paid news is a reality, and therefore if you follow the dicta of the American judgments which Tata Press has followed in India, will free speech also provide a right which extends to paid news? Obviously it does not sound logical, and therefore this issue has not come up before the courts. However, if there was to be a penal provision against paid news, it would have to be tested on the touchstone of whether it violates free speech or not.

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