Protect right of expression

The Ministry of Information and Broadcasting had recently imposed an unprecedented telecast ban on two Malayalam news channels – Asianet News and Media One TV.

The flimsy grounds adopted by the ministry to ban these news channels bring to light the recurring problem of blanket bans on the exercise of the fundamental right to freedom of speech and expression (the ban was, of course, lifted subsequently following criticism).

These instances are part of an overarching problem in the legislature which empower the executive with wide discretionary powers that are often abused and exercised arbitrarily. On the other hand, it is necessary to regulate news channels to prevent them from infringing on the rights of others. Thus, there is an inherent conflict between the fundamental right of speech and expression vis-à-vis regulation of media which needs to be balanced appropriately.

With regard to Media One TV, the charge was that it alleged that the police were hand in glove with rioters due to the non-registration of FIRs following provocative speeches by BJP leaders, and also implied the inaction of Union and Delhi government.

In reference to Asianet News, it broadcast that rioters shouted chants of ‘Jai Sri Ram’, that Muslims were brutally attacked, that police were not taking any action and that the Centre did not take any decision on the deployment of army in the affected areas.

The ministry imposed the ban on the ground that the reporting by these channels could ‘enhance’ communal disharmony in the country which was already in a volatile state. One of the other grounds was that the channels questioned the actions of RSS and Delhi Police.

The ministry claimed that the news should have been broadcast in a ‘balanced way’. Interestingly, it did not question the veracity of the news broadcast or label them as false.

The broadcast by both the media houses brings to light the action of government entities and other bodies at play which is the entire point of media houses and freedom of speech and expression guaranteed under the Constitution.

Permissible limits of regulation: It is a well-established principle of law that any procedure which limits the exercise of freedom of speech and expression must not be arbitrary and should be sanctioned by law.

Thus understood, “procedure” must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be channelised only by the civilised process. The proposed action must be necessary in a democratic society for a legitimate aim and the extent of such interference must be proportionate to the need for such interference. Conversely, it must not be disproportionate or excessive.

“Narrow tailoring” requires that the state action should infringe the fundamental right in a minimum possible manner to achieve its legitimate aim. This was laid down by the US Supreme Court in Grutter vs Bollinger and has been recently upheld by the Indian Supreme Court in the Aadhaar case.

The SC held that judicial oversight must exist as a procedural safeguard when the state is infringing upon freedom of speech and expression to achieve certain goals.

Ineffective remedy against abuse by executive: Any media house affected by abuse of power by executive may move any high court or the Supreme Court under Articles 226 or 32 of the Constitution, respectively, or move a civil court for the violation of rights vested in it and claim damages for the same.

These remedies look attractive at first blush but often take substantial, money, effort, time, and lawyering to enforce the right. Further, even if one is successful in getting the claimed relief, the amount of time taken by the courts often defeats the remedy. More so in the context of telecast ban which takes effect immediately and lasts for a day or two.

The telecast ban imposes an unfair burden on the media houses to prove that their telecast was within permissible limits. On the part of the state, all it has to do is to impose ban and practically face no consequences, except the ban being lifted by the court that too after a long period of time.

In terms of cost, the state should have a higher onus to prove itself as its actions have grave consequences on the exercise of the right to speech and expression. In fact, political biases may be imputed to state against media houses which are trying to expose the state. If the onus is not on the state, it gets right to almost act with impunity and do as it pleases.

Balancing interests: Permissible limits of ban require “narrow tailoring” and judicial oversight as a procedural safeguard. This would mean that before the state chooses to impose a ban on telecast such a ban must be affirmed by a judicial authority. To prevent delay in imposition of the ban, such proceedings could be ex-parte ex-ante judicial order.

Ex-ante ex-parte judicial permission is the best way to adequately address the interest of state and that of citizens as well. Before the ban could be carried out by the state, executive through a lawyer shall present the ‘probable cause’ to judges who shall then permit such telecast ban.

This way any dilatory tactics that could be adopted by media houses would stand eliminated and all concerns regarding the unfair imposition of the ban will also be resolved. In cases which demand instant action, the ban may be carried out and later be ratified by the judge.

Attack on media houses is an attack on the fourth pillar of democracy and calls for legislative reforms. It is imperative that the legislation permitting ban by the state must be overhauled to include procedural safeguards failing which the freedom of speech and expression is left to the mercy of the state.

When the issue at hand is political, the state cannot be assumed to be a neutral party and often will take sides. In such event, it is necessary that fundamental right of speech and expression must be protected at all cost.

(The writer is a student at the National Law School of India University, Bengaluru)